Here's the match-up. In the right corner we have Omar al-Bashir, for 20 years the Islamist dictator of Sudan and the man most responsible for the death of hundreds of thousands of Darfuris. In the left corner we have six former Bush Administration officials who were given the task after September 11 of formulating America's response to the atrocities. Who do you think is in the greatest legal jeopardy?

This should be easy: Mr. Bashir was recently issued with an arrest warrant by the International Criminal Court for "crimes of genocide, crimes against humanity and war crimes in Darfur." More specifically, the court's prosecutor alleges that Mr. Bashir "masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity."

Yet thanks to the concept of "universal jurisdiction" (or "universal competence") the six Americans, including former Attorney General Alberto Gonzales, former under Undersecretary of Defense for Policy Douglas Feith and former vice presidential Chief of Staff David Addington, are the ones who may soon have to watch their back -- at least when they travel abroad.

That's because a hyperactive Spanish judge named Baltasar Garzón has begun the process of opening a criminal case against the six, following a complaint from a Spanish human rights group arguing they helped establish the legal framework that created the detention facilities at Guantanamo and the "torture" they allege took place there. According to the New York Times, an unnamed official said it "was 'highly probable' that the case would go forward and that it could lead to arrest warrants." In 1998, a similar warrant from Judge Garzón led to the house arrest in Britain of former Chilean strongman Augusto Pinochet, a stunt that did nothing except create a diplomatic headache for the government of Tony Blair.

This case would be absurd were the consequences less pernicious, and not merely to the former officials now in legal jeopardy. The idea that any magistrate, anywhere, is entitled to judge the legality of decisions -- or even merely the advice -- of foreign officials acting in good faith under the laws of their own elected governments makes a nonsense of centuries-old concepts of sovereign jurisdiction and democratic accountability. It also sends a chilling signal to any official, including those now in the Obama Administration, who must weigh the counsel they provide the President against the personal legal risks they may run once they are out of office because of that counsel.

Put simply, Mr. Garzón's intercession is a recipe for legal anarchy, compromised executive decision-making, and the diminution of American sovereignty. Nor does it help that the names of the would-be defendants seem to have been chosen pretty much at random: As Mr. Feith told the Times, "I didn't even argue for the thing I understand they're objecting to."

One reason Mr. Garzón may have chosen Mr. Feith is because he has been a special target of Senator Carl Levin (D., Mich.), who has all but encouraged foreign prosecutors to bring such charges against Bush officials. The goal of Mr. Levin, Senator Pat Leahy and Congressman John Conyers has been to promote the "torture" smears against Republican officials without having to take responsibility for any potential damage to U.S. security. If a foreign prosecutor or an allegedly independent "commission" does their dirty work, so much the better.

Now turn to Mr. Bashir, who on Sunday was given a warm reception by fellow leaders of the Arab League at their summit in Doha, Qatar. This is at least the second time Mr. Bashir has ventured out of Sudan since the ICC issued its arrest warrant, and it's clear he has nothing to fear from his fellow Arab potentates, none of whom have signed on to the ICC. But that only illustrates the fundamental problem of a court that has no jurisdiction in the places where the massive human rights violations it was created to punish typically take place. As for the countries that are signatories, the courts of Norway or New Zealand are more than adequate for dealing with whatever genocidaires may be in their midst.

These columns have long argued that it would be dangerous for the U.S. to become a party to the ICC. As a Senate candidate in 2004, Barack Obama offered merely that the U.S. should "cooperate" with the ICC "in a way that reflects American sovereignty and promotes our national security interests."

Now that he is President, he has larger obligations. One is to stand against foreign grandstanding that intrudes on America's rule of law. Another is to oppose Members of his own party, such as Mr. Levin, who are running political vendettas against former U.S. officials. We hope Mr. Obama will value the frank opinions of his own advisers enough to publicly condemn Judge Garzón's legal assault on honorable public servants who did their best to protect the U.S. from harm.

It would be hard to believe that some form of nepotism or and bribery did not cause "lawmakers" to decide it is OK to confiscate money from casinos to give to horse racing tracks. Did this subtle type of corruption also influence the courts?

Probably.

****Racing Past the Constitution

By George Will

http://www.JewishWorldReview.com | Rampant redistribution of wealth by government is now the norm. So is this: This redistribution inflames government's natural rapaciousness and subverts the rule of law. This degeneration of governance is illustrated by the Illinois legislature's transfer of income from some disfavored riverboat casinos to racetracks.

Illinois has nine licensed riverboat casinos and five horse-racing tracks. In 2006, supposedly to "address the negative impact that riverboat gaming has had" on Illinois horse racing, the legislature -- racing interests made huge contributions to Gov. Rod Blagojevich -- mandated a transfer of 3 percent of the gross receipts of the four most profitable casinos, those in the Chicago area, to the horse-racing tracks. This levy, subsequently extended to run until 2011, will confiscate substantially more than $100 million.

What is to prevent legislators from taking revenue from Wal-Mart and giving it to local retailers? Or from chain drugstores to local pharmacies? Not the tattered remnant of the Constitution's takings clause.

The Fifth Amendment says that private property shall not "be taken for public use without just compensation" (emphasis added). Fifty state constitutions also stipulate taking only for public uses. But the Illinois Supreme Court ignored the public-use question. Instead, the court said it is "well settled" that the takings clause applies only to government's exercise of its eminent domain power regarding land, buildings and other tangible or intellectual property -- but not money.

Conflicting rulings by state courts demonstrate that that question is chaotically unsettled. That is one reason the U.S. Supreme Court should take the Illinois case and reject the preposterous idea that money is not property within the scope of the takings clause -- an idea that licenses legislative confiscations. Another and related reason the court should take the case is to reconsider its 2005 ruling that rendered the "public purpose" requirement empty.

The careful crafters of the Bill of Rights intended the adjective "public" to restrict government takings to uses directly owned by government or primarily serving the general public, such as roads, bridges or public buildings. In 1954, in a case arising from a disease-ridden section of Washington, the court broadened the "public use" criterion. It declared constitutional takings for the purpose of combating "blight" that is harmful to the larger community.

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In 2005, however, in a 5 to 4 decision, the court radically attenuated the "public use" restriction on takings, saying that promoting "economic development" is a sufficient public use. The court upheld the New London, Conn., city government's decision to seize an unblighted middle-class neighborhood for the purpose of turning the land over to private businesses which, being wealthier than the previous owners, would be a richer source of tax revenue. So now government takings need have only some anticipated public benefit, however indirect and derivative, at the end of some chain of causation hypothesized by the government doing the taking and benefiting from it.

In a brief opposing the Illinois legislature, the American Legislative Exchange Council, an organization of state legislators, makes this argument against "predatory taxation": Suppose Congress, eager to aid newspapers hurt by competition from new information technologies, decides to take a percentage of the assets of Bill Gates and half a dozen other beneficiaries of those technologies and give the money to newspapers. Would not this "take and transfer" scheme be unconstitutional? Targeting specific, identifiable persons or entities for unfavorable treatment, and transferring their assets to equally identifiable persons or entities, surely also raises equal protection issues. Unquestionably a legislature can impose a levy on casinos if the revenue becomes subject to what the state legislators' brief calls "allocation via the familiar push and pull of political decision-making." But Illinois' confiscation of riverboat revenue is a private-pockets-to-private-pockets transfer, without even laundering the money through the state treasury.

The Supreme Court has held that "one person's property may not be taken for the benefit of another private person without a justifying public purpose." But in the aftermath of the court's ruling in the New London case, the Illinois legislature merely seeks judicial deference toward its judgment that transferring wealth from casinos to racetracks serves the public purpose of benefiting "farmers, breeders, and fans of horse racing."

The court's virtual nullification of the "public use" requirement encourages lawlessness, which will proliferate until the court enunciates the constitutional principle that the takings clause protects money, like other forms of property, against egregious seizures. Enunciating such a principle would be a step toward restoring meaning to the "public purpose" clause.****

It's strange enough that the Obama Administration is hyping last week's toothless statement by the United Nations Security Council condemning North Korea's recent rocket launch. Even more amazing, it says the U.N. move is "legally binding" on member states.

Those were the words used by Susan Rice, U.S. ambassador to the U.N., and repeated by a State Department spokesman. Ms. Rice is badly misinformed. As she ought to know, a "presidential statement" issued by the Security Council is legally binding on no one.

A presidential statement is agreed to by all 15 members of the Security Council and issued by the rotating president. Invented in 1994, such statements aren't even mentioned in the Security Council's procedural rules and impose zero obligations on members. They are a last resort when the Security Council can't summon the will or agreement to pass a resolution.

That's what happened after North Korea's April 5 missile launch, when neither China nor Russia would agree to the U.S. wish for a resolution. Legal experts -- including the Permanent Five's attorneys in a 2005 memo -- agree that the only U.N. pronouncement that is legally binding is a Security Council resolution issued under Chapter VII of the U.N. Charter, which sets out the Council's powers to maintain peace. Such resolutions can be enforced with sanctions or military action. Resolution 1718, passed in 2006 after North Korea's nuclear and missile tests, falls in this category.

The distinction between "Chapter VII resolutions" and other U.N. utterances is important -- as the example of Israel illustrates. Since the Jewish state has never been subject to a Chapter VII resolution, no Israeli "violation" of a U.N. pronouncement can give rise to sanctions. Even the famous Resolution 242, issued at the end of the 1967 Six-Day War, was not issued under Chapter VII. If the Obama Administration considers even U.N. presidential statements "legally binding," it's an invitation to the U.N. to ramp up its attacks on Israel.

Last week's statement on North Korea is binding only in the sense that it calls on member states "to comply fully" with their obligations under Resolution 1718, which bans sales of weapons, weapons parts and luxury goods to North Korea. Resolution 1718 is legally binding, but it has never been enforced. This speaks volumes about the sincerity of promises made at the U.N., and about the failure of the Obama Administration to win Security Council support for a serious response to North Korea's missile launch.

I recall Chief Justice John Roberts saying just the opposite. (Paraphrasing from memory) Question: Will you side with the little guy? Answer: When the constitution is on the side of the little guy I will side with the little guy; when the constitution is not on his side I won't.

President Obama made a short statement about the retirement of Justice Souter in which he outlined what he will be looking for in Souter's replacement. He stated, in part:

"I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation."

"I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions AND OUTCOMES"(emphasis added)

By indicating that his concern is not just with just decisions but also just outcomes, Obama reveals the lawless quality of his thinking. The legitimate function of a judge is to reach just decisions, full stop. Once judges, or the president who appoints them, start thinking about just outcomes, we are well down the path to judicial tyranny. And once just outcomes are defined as those that display empathy for "the people," we could be starting down the road to banana republic status.

Obama apparently wants outcomes that will make people feel welcome in their own nation. It's not clear to me what he's referring to here. But whatever it is, the extent to which people feel welcome must be determined by how their neighbors view them and, to the extent (limited, one hopes) the law becomes involved, the rights and benefits conferred by the language of the laws in question.

If Obama wants to appoint a Justice who has run or worked in a soup kitchen, that's fine. But it looks to me like he wants to appoint a Justice who will reach outcomes that establish "soup kitchens" regardless of whether that's the best view of the legal provision he or she is interpreting.

Expect the worst, not just from this judicial nomination but from all subsequent ones.

Posted by Zach LoweThomas Lauria, head of the restructuring practice at White & Case, is in a tough spot: the lead lawyer for the group of holdout lenders that the Obama administration is blaming for pushing Chrysler into Chapter 11. The group, as you know by now, refused to take 33 cents on the dollar for the approximately $1 billion in Chrysler debt they hold. The four biggest bank lenders to Chrysler--all recipients of federal bailout money--took that deal, drawing praise from Obama for their decision. Now Lauria is vowing to fight. Specifically, he says the holdout lenders will challenge the planned sale of Chrysler's prime assets to a new company controlled by the auto workers union and Fiat, according to Reuters. The lenders say the sale is an "end run" around established bankruptcy law that gives secured lenders priority over junior lenders (including the union) when it comes to getting repaid. Lauria has been here before. In the contentious Adelphia Communications bankruptcy, Lauria led a group of creditors that filed late motions calling for a special trustee to investigate whether each group of note holders was getting what they deserved, according to this 2006 story from the New York Law Journal. A judge dismissed his motion, calling it a "nuclear war button" that threatened to disrupt the planned sale of Adelphia's prime assets to Time Warner and Comcast for nearly $18 billion. This is the exact strategy University of Chicago law professor Douglas Baird predicted the holdout lenders would use when we interviewed him yesterday. As Baird noted, creditors have the right to challenge any bankruptcy reorganization plan that ends with them receiving less than they would have had the company been liquidated. The holdout lenders believe that to be the case here, Baird told us. But section 363 of the U.S. bankruptcy code allows for Chapter 11 debtors to sell assets before creditors can challenge the general reorganization plan.That means Lauria's only option is to object to the sale, Baird told us. Lauria did not respond to a message seeking comment; he's likely tied up at a massive hearing in federal bankruptcy court in Manhattan today. On the other end of the lender spectrum is Simpson, Thacher & Bartlett, which is advising JPMorgan Chase, the lead lender to Chrysler. Peter Pantaleo, head of Simpson's bankruptcy practice, is representing JPMorgan. He declined to comment. So will Lauria's plan work, or will only serve to delay Chrysler's emergence from bankruptcy? Steven Gross, co-chair of the restructuring practice at Debevoise & Plimpton, told our colleague Brian Baxter he's anxious to see the group's motion objecting to the sale. But Gross says the press release the lenders put out Thursday was "not very compelling," and that the chips may be stacked against their objection to the Fiat sale."People are saying this is just the government bullying people," Gross says. "But there is still a statute, and if there are grounds to derail [the sale], you can be sure [the non-TARP lenders] will use it, although in bankruptcy if you get some many constituents to support something, that can be very hard."

"What happened to basic contract law? ...But why should the Secured Creditors go along?One of the many things that has made our country great is the concept of risk/reward."

Great Points JDN! I am with you on this one. We are in the process of neutralizing the upside and downside of risk, degrading reward and eliminating consequences and corrections, all from leadership in the executive and legislative branches that are disdainful of the economic system that made America great.

(2009-05-01) — As speculation runs rampant about who President Barack Obama will pick to replace retiring Supreme Court Justice David Souter, two long-time associates of the president have downplayed rumors that their names might be on the president’s short list.

William Ayers, a Chicago educator and Jeremiah Wright, Mr. Obama’s former pastor, each denied they had been in recent contact with the White House.

“While I have been a vocal advocate of justice for years,” said Rev. Wright, “I’m enjoying my retirement, traveling around, and spreading the good news of God’s condemnation of America. I’m certainly qualified for the high court, and I already have the wardrobe, but these rumors are premature.”

Meanwhile, Mr. Ayers, who exploded onto the national scene in the 1960s and 70s, and has intimate knowledge of the legal system, said he’s “too busy preparing youth to live in the new America to mull a court appointment at this time.”

White House spokesman Robert Gibbs said it’s unlikely that the president would appoint either Mr. Ayers or Rev. Wright, “since he knows many other similarly-qualified candidates with less name recognition.”

Palm Beach County school bus attendant convicted of child neglect for doing nothing while toddler was raped

By CHRISTINA DeNARDO

Palm Beach Post Staff Writer

Thursday, May 21, 2009

WEST PALM BEACH — A former Palm Beach County school bus attendant who stood by as a pre-schooler was raped by a teenager on her bus was convicted of child neglect on Thursday.

The incident happened in January 2007 on a bus filled with Gladeview Elementary and Pahokee Middle/Senior High students.

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Share This StoryThe attendant, Grenisha Williams, saw a boy kneeling on the bus floor and kissing a 3 1/2 year old girl's neck and asked the student what he was doing. The student responded he was not doing anything, and Williams told him to go to another seat. When the student refused, Williams walked away but told police she kept an eye on the boy. The boy was not questioned further, and he was allowed to get off at his stop.

After the boy left, the girl was questioned and said that the boy touched her. When bus supervisors reviewed a tape of the incident, they saw the boy, who was 14, sexually assaulting the little girl. The content of the tape was so disturbing, it was sealed from public disclosure.

In an interview with police, Williams said she "just panicked" and did not know what to do. The driver, Laverne Sellers, told police she was unaware of the incident until she was later told by Williams.

Williams and Sellers were fired in May 2008.

Since the incident, the school district no longer allows older students to ride with elementary or preschool children.

The boy, who admitted to police that he sexually assaulted the girl, was charged with felony sexual battery. His case is pending.

I'm almost tempted to start a new thread regarding the Sotomyer nomination. Her beliefs where the Second Amendment is concerned appear absurd, and she certainly doesn't take the court in a direction regarding takings and Kelo that Souter hasn't already staked.

The Sotomayor NominationRichard A. Epstein, 05.26.09, 11:45 AM ETIn a previous Forbes column, I decried President Barack Obama's insistence that empathy would weigh heavily in the scales when it came to his next Supreme Court nominee. And reading the arguments that were put forth to justify the nomination of Sonia Sotomayor of the Second Circuit to the Supreme Court, it appears that all the bad chickens have come home to roost.

Evidently, the characteristics that matter most for a potential nominee to the Supreme Court have little to do with judicial ability or temperament, or even so ephemeral a consideration as a knowledge of the law. Instead, the tag line for this appointment says it all. The president wants to choose "a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation's first Hispanic justice."

Obviously, none of these factors disqualifies anyone for the Supreme Court. But affirmative action standards are a bad way to pick one of the nine most influential jurists in the U.S., whose vast powers can shape virtually every aspect of our current lives. In these hard economic times, one worrisome feature about the Sotomayor nomination is that the justices of the Supreme Court are likely to have to pass on some of the high-handed Obama administration tactics on a wide range of issues that concern the fortunes of American business.

We have already seen a president whose professed devotion to the law takes a backseat to all sorts of other considerations. The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court's jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.

Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the "public use language." Of course, the takings clause of the Fifth Amendment is as complex as it is short: "Nor shall private property be taken for public use, without just compensation." But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion--one that makes Justice Stevens look like a paradigmatic defender of strong property rights.

I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo's home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco. Indeed, the threats that Wasser made look all too much like the "or else" diplomacy of the Obama administration in business matters.

Jurisprudentially, moreover, the sorry Didden episode reveals an important lesson about constitutional law. It is always possible to top one bad decision (Kelo) with another (Didden). This does not auger well for a Sotomayor appointment to the Supreme Court. The president should have done better, and the Senate, Democrats and Republicans alike, should subject this dubious nomination to the intense scrutiny that it deserves.

Richard A. Epstein is the James Parker Hall distinguished service professor of law at the University of Chicago, the Peter and Kirsten Bedford senior fellow at the Hoover Institution and a visiting professor at NYU Law School. He is a columnist at Forbes.

I think perhaps a new thread should be started, but that is up to our Moderator I guess.

Is the Sotomyer the "perfect" choice? No, I suppose not.However, is she qualified? Yes, she is...

And as as Sen. John McCain said Tuesday, she would probably not have been his pick. But then again, he added, "my initial thoughts are that elections have consequences".

And given the rut that Republicans seem to be in, do they really really want to attack a woman nominee?

Or a historic Lintino nominee?

So here's the question: Wouldn't it be more prudent for Republicans to save their fire for a better target? Someone perhaps not as qualified? Or someone who is not quite as historic an appointment as Sotomayor?

From Judge Sotomayor's point of view the answer to this question seems apparent -- in all likelihood she will be confirmed. The interesting questions center around how Republicans will conduct themselves, and how they should.

In addressing the prescriptive question, I take the following propositions as axiomatic:

First, Republicans are free to follow existing standards for considering Supreme Court nominees -- i.e., those set by the Democrats during the Roberts and Alito confirmation processes. I exclude from this rule only matters of demeanor; Republicans should act with far more courtesy and respect towards Sotomayor than the Dems did towards President Bush's nominees. But when it comes to "discovery," substantive questioning, voting up or down, and deciding whether to filibuster, Republicans are free to follow existing standard. Indeed, the presumption should be in favor of doing so, since it clearly will not do to have different standards depending on which party nominates a potential Justice.

Second, Repubilcans should not raise the bar. During the Roberts and Alito proceedings, the Democrats raised the bar considerably as compared to where it had been set for Ginsburg and Breyer. But Republicans should not follow suit. The higher the bar, the more likely the Senate will confirm only wishy-washy centrists or stealth nominees. The Supreme Court would suffer as a result.

It's premature fully to apply these rules to Judge Sotomayor other than to say that she should be subjected to a high degree of scrutiny -- including production of potentially relevant documents and extensive questioning -- as Roberts and Alito were.

From what we already know, however, I submit that Republican Senators should feel free to vote against Sotomayor. Half of the Senate Democrats voted against Roberts and a strong majority voted against Alito. They did this for no other reason than their desire not to have another "conservative" on the Supreme Court. There is substantial evidence that Sotomayor is a "liberal." Thus, non-liberal Senators have every right to vote against her for that reason.

Some Republican Senators may be reluctant to do so given her ethnicity and the power of the Hispanic vote. Depending on how the confirmation process goes and what state a given Senator represent, voting "yes" may be a sensible option. There is no imperative that Senators jeopardize their political future by voting against Sotomayor if the cause is lost.

The existing practice on filibusters is ambiguous. However, the "Gang of 14" approach -- that filibusters should occur only under "extraordinary circumstances" -- probably can pass for a rough description of the current state of play.

So far, I'm aware of no extraordinary circumstance that would justify a filibuster against Sotomayor. Her attempt to "fly under the radar screen" while upholding racial discrimination against non-black firefighters was deplorable, but probably not sufficiently so.

Sotomayor's suggestion that, other things being equal, Latina judges can decide cases better than their white male counterparts hints at a special circumstance, since it entails a view of judging that arguably is antithetical to existing norms. Sotomayor should be examined carefully on this question. If she does not walk away from her prior statement, then (coupled with her positions on race-based preferences) the Republicans may have (a) a basis for asserting the existence of an extraordinary circumstance and (b) a tenable political basis for obstructing this nominee.

And this week they shot a physician in front of his own family in the middle of church??? That one is tough to top...

Maybe it's time the full force of the law is heard. Lock them all up; for a very long long time. This is not the first time..... And these anti abortion cold blooded murderers have been called martyrs......

__________________

By Robin Abcarian and Nicholas Riccardi

June 1, 2009

Reporting from Los Angeles and Wichita, Kan. — For years, abortion foes tried to put Dr. George Tiller out of business. One of the few American physicians who performed late-term abortions, he was targeted by violent extremists as well as principled opponents.

In 1986, his clinic was bombed. In 1991, it was blockaded for six weeks. In 1993, he was shot in both arms. In March, Kansas prosecutors tried him on charges of breaking an abortion law; he was acquitted. In May, vandals cut wires to security cameras and made holes in the roof of Tiller's clinic, Women's Health Care Services, a fortified single-story building where abortion foes keep daily vigil.

Until Sunday, when a gunman shot Tiller to death in the foyer of his church, the doctor had always overcome the daunting legal and physical challenges of his work, terminating pregnancies of women and girls who were in the 22nd week of gestation or beyond. But where supporters of legal abortion saw a savior, opponents saw a heartless killer.

Tiller was working as an usher at Reformation Lutheran Church and his wife, Jeanne, was in the choir when he was gunned down about 10 a.m.

Adam Watkins, 20, told the Associated Press that he was sitting in the middle of the congregation when he heard a small pop.

"We just thought a child had come in with a balloon and it had popped," he said.

Another usher told the congregation to remain seated, then escorted Tiller's wife out. "When she got to the back doors, we heard her scream, and so we knew something bad had happened," Watkins said.

Tiller's lawyers released a statement from Tiller's wife, four children and 10 grandchildren: "Today we mourn the loss of our husband, father and grandfather," it said. "This is particularly heart-wrenching because George was shot down in his house of worship, a place of peace."

Hours later, Wichita police announced they had arrested a 51-year-old man about 170 miles away. A Johnson County sheriff's spokesman said Scott Roeder was arrested near Kansas City, the Associated Press reported.

Wichita police said the suspect could be charged today with murder and aggravated assault.

U.S. Atty. Gen. Eric H. Holder Jr. said the Justice Department was involved in the investigation. In a statement, Holder pledged to help protect abortion facilities and providers around the country to prevent "related acts of violence."

Obama 'outraged'

Tiller's slaying comes as President Obama, who supports abortion rights, has called for the opposing sides to find common ground. "I am shocked and outraged by the murder of Dr. George Tiller as he attended church services this morning," Obama said in a statement. "However profound our differences as Americans over difficult issues such as abortion, they cannot be resolved by heinous acts of violence."

Last month, in a commencement speech at the University of Notre Dame, the president issued a plea for respectful discourse, but acknowledged, "The fact is that at some level, the views of the two camps are irreconcilable."

Kelli Conlin, president of NARAL Pro-Choice New York, echoed that sentiment Sunday: "It is cold-blooded, vicious actions like today's assassination that make it hard for those of us in the pro-choice community to find common ground with those on the other side."

With one bullet, a gunman ended the life and the controversial career of abortion doctor George Tiller, killing him as he stood in the foyer of his church Sunday.

Today, a 51-year-old Johnson County man could be charged with murder and aggravated assault in the shooting of Tiller, who had been shot before by an anti-abortion foe.

The crime has drawn condemnation and outrage from the president and stirred strong emotions across the nation.

Tiller, 67, was shot once just after 10 a.m. Sunday as he stood in the lobby of Reformation Lutheran Church, 7601 E. 13th St., where he was serving as an usher. The gunman threatened to shoot two men who tried to apprehend him.

Wichita police said that the suspect was arrested without incident on I-35 in Johnson County about three hours after the shooting, following a statewide broadcast describing the suspect and his car.

Although Wichita police would not name the suspect, the Johnson County Sheriff's Office identified him as Scott P. Roeder, according to the Associated Press.

Wichita police said it appeared that the suspect had acted alone but that they are investigating whether he had any connection to anti-abortion groups.

Police on Sunday said they expected the man to be charged with murder and two counts of aggravated assault.

In a news conference at Wichita City Hall, Deputy Police Chief Tom Stolz said police will "investigate this suspect to the Nth degree, his history, his family, his associates, and we're just in the beginning stages of that."

Tiller had long been a focal point of protests by abortion opponents because his clinic, Women's Health Care Services, 5107 E. Kellogg, is one of a few in the country where late-term abortions are performed.

He was shot and wounded in both arms at his clinic in 1993.

Sunday's shooting stoked emotional debate on the Internet between supporters of abortion rights and abortion opponents.

Without elaborating, Stolz said investigators will look into the Internet comments because the discussion could bear on public safety.

Tiller's family issued a statement through Wichita lawyers Dan Monnat and Lee Thompson:

"Today we mourn the loss of our husband, father and grandfather. Today's event is an unspeakable tragedy for all of us and for George's friends and patients.

"This is particularly heart wrenching because George was shot down in his house of worship, a place of peace."

A timeline

Police and other sources described what happened in the church.

For the 10 a.m. service, Tiller was serving as an usher, one of six ushers listed in the church bulletin. He was handing out bulletins to people going into the sanctuary minutes before being shot.

At 10:03, Tiller was one of six to 12 people in the foyer, outside the sanctuary. His wife, Jeanne, was at the church.

A man armed with a handgun shot Tiller once, according to the preliminary investigation. Three to four people saw the shooting.

Two men confronted the suspect and exchanged words with him, but police would not say what was said.

"They were both threatened, and the gun was pointed at them," Stolz said.

That is why the suspect could face the aggravated assault charges, Stolz said.

Within minutes, paramedics arrived and pronounced Tiller dead at the scene.

Officers arrived and immediately started interviewing witnesses.

Police obtained the suspect's description and vehicle description -- a powder-blue 1993 Ford Taurus -- from witnesses at the church and broadcast it and the tag number to law enforcement agencies throughout the state. The car was registered to Scott Roeder of Merriam, in Johnson County.

Police also obtained a photo of the suspect, who had a prior conviction for criminal use of explosives, which was overturned on appeal, according to court records.

Officers began checking motels and other places for the suspect.

Before the shooting, the church was packed, said Shirley King, one of the parishioners. New members were joining. A baptism was on the agenda.

When King heard a "pop" sound, she thought it was special effects from the percussionist. Some people glanced toward the rear of the church, curious.

Tiller's wife, Jeanne, was sitting with the choir downstairs, King said. An usher came, and motioned for Jeanne Tiller to come with him.

"The rest of us were listening to the prelude, but then came the piercing screams of a woman who obviously had witnessed a horrible sight," King wrote in an e-mail.

"A few people immediately jumped up, but quickly one of our church leaders said, 'Everyone please be seated. Please remain calm. We have had an incident and we are taking care of it. Remain in your seat.' "

Adam Watkins, 20, who said he has attended the church his entire life, said he was sitting in the middle of the congregation when he heard the "pop."

"We just thought a child had come in with a balloon and it... had gone up and hit the ceiling and popped," Watkins said.

Once they learned of the shooting, Watkins said:

"We were just really shocked. We were kind of dumbfounded. We couldn't really believe it had happened."

The suspect's car was spotted shortly before 2 p.m. just south of Gardner by two Johnson County sheriff's deputies -- Andy Lento and Tyson Kilbey. The Sheriff's Office had suspected that the man would be coming back on I-35 to his home, and Kilbey and Lento waited for him.

As the car went north, Lento and Kilbey followed and were joined by three other sheriff's patrol cars.

Lt. Mike Pfannenstiel of the Sheriff's Office said officers pulled the car over just south of the main Gardner exit and got out with guns drawn. The man got out of his car with his hands up.

"We took him down without incident," Pfannenstiel said, adding that the man appeared to be driving the speed limit and made no attempt to elude the deputies.

At the 4 p.m. news conference, Stolz said authorities were bringing the suspect to Wichita.

He said that police expect to present the case to the Sedgwick County District Attorney's Office today.

At 7 p.m., a private vigil service was held at Reformation Lutheran Church. Tiller's wife, his children and grandchildren attended. Two police officers stood in the back of the sanctuary.

The Rev. Lowell Michelson, senior pastor of Reformation, said that part of the message of the vigil focused on the message that "love is stronger than hate."

That was clear, he said, in the congregation's response to one another.

"I think the way that folks gathered around Jeanne tonight in large numbers speaks volumes not only about the support and encouragement we get from Jesus Christ," he said, "but also the way the Holy Spirit works."

Reaction to shooting

President Obama released a statement on the shooting.

"I am shocked and outraged by the murder of Dr. George Tiller as he attended church services this morning. However profound our differences as Americans over difficult issues such as abortion, they cannot be resolved by heinous acts of violence."

Mickey Cohlmia, a member of the neighboring St. George Orthodox Christian Cathedral, said: "It is absolutely disheartening.... I think it shows where our world is today.... There is no safe place."

The anti-abortion group Operation Rescue, in a statement on its Web site, said:

"We are shocked at (Sunday) morning's disturbing news that Mr. Tiller was gunned down. Operation Rescue has worked for years through peaceful, legal means, and through the proper channels to see him brought to justice. We denounce vigilantism and the cowardly act that took place this morning. We pray for Mr. Tiller's family that they will find comfort and healing that can only be found in Jesus Christ."

Former Kansas Attorney General Phill Kline, who conducted an investigation into Tiller, said in a statement that he was "stunned by this lawless and violent act which must be condemned and should be met with the full force of law. We join in lifting prayer that God's grace and presence rest with Dr. Tiller's family and friends."

Warren Hern, a Colorado physician and close friend of Tiller's -- who described himself now as "the only doctor in the world" who performs very-late-term abortions -- said Tiller's death was predictable.

"I think it's the inevitable consequence of more than 35 years of constant anti-abortion terrorism, harassment and violence," he said.

When Obama was elected last fall, Hern predicted that anti-abortion violence would increase, he said. Because Obama supports legalized abortion, Hern said, its foes "have lost ground.... They want the doctors dead, and they invite people to assassinate us. No wonder that this happens.

"I am next on the list."

Ongoing threats

Tiller and his clinic have faced continuous threats and legal action.

A Wichita jury ruled in March that he was not guilty of illegal abortion on 19 criminal charges he faced for allegedly violating a state law requiring an independent second physician's concurring opinion before performing late-term abortions.

Immediately following the ruling in the criminal case, the Kansas Board of Healing Arts made public a similar complaint against Tiller that was originally filed in December 2008.

Protesters blockaded Tiller's clinic during Operation Rescue's "Summer of Mercy" protests during the summer of 1991, and Tiller was shot by Rachelle Shannon at his clinic in 1993. Tiller was wounded in both arms. Shannon remains in prison.

The clinic was bombed in June 1986 and was severely vandalized last month. His lawyer said wires to security cameras and outdoor lights were cut and that the vandals also cut through the roof and plugged the buildings' downspouts. Rain poured through the roof and caused thousands of dollars of damage in the clinic. Tiller reportedly asked the FBI to investigate the incident.

A nice example of JDN-hypocrisy. Watch the shooter turn out to be a muslim and suddenly it won't be a criminal act in his eyes.

GM; be nice

A crime is a crime. I don't care if the shooter was Christian, Jew, Buddhist OR Muslim. He deserves a quick trial and then hanging within the year.And groups, be they of whatever order or cause that commit such violence and illegal acts also deserve to be serverely punished.And on American soil; I find it particularly repugnant.

A late term abortion doctor praying in a church produces in me a deep sense of cognitive dissonance. That said, there should be no hesitation in any circle in condemning his murder nor calling for his punishment, regardless of the incongruities of others. Wrong is wrong.

I condemn the murder of the abortionist. May he face the full penalties of the law including death penalty if available.

Beside the crime, he hurts his own movement, encouraging drivel like this: "anti abortion groups. A rather cold blooded and vicious lot...Lock them all up; for a very long long time." - Lock up whom? The ones who killed an abortion doctor (we already do that) or the ones who are trying to save lives?

"A late term abortion doctor praying in a church produces in me a deep sense of cognitive dissonance."

I've shed not a tear yet for the late term abortionist, but his life would have been saved IMO if we lived under one of our own pretend principles called 'consent of the governed'. As posted elsewhere, no serious anti-abortion law has EVER been proposed that does not make exception for protecting the life of the mother. Assuming the killer's objective was to save innocent life, he would not feel driven to murder, so powerless in the democratic process if there was a possibility in his state to even debate, lobby or petition the government for the right to protect innocent human life from slaughter.

Instead that issue is determined for us by the likes David Souter et al posing as royalty for life, like a third world country. They even time their departures to allow for the continuation of their agenda with 'policy makers' that cannot be recalled by election and will not answer anything in confirmation that resembles a 'litmus test'.

Regarding the church, offering forgiveness for sins on Sunday for those who then continue their lawful killing on Monday through Friday, may I refrain from posting my view of how the late term abortionist will be judged when he meets his maker.

Sorry I didn't follow the argument about which one of these guys was a martyr. One kills at least in his mind the guilty to stop the killing of innocent human life, and these are not gobs of goo or embryos. These are formed, small humans with unique DNA and beating hearts but 'the law' from the liberal elites does not allow any legal means to pursue their protection. The other was also a martyr, bless his soul, killing to protect the right of the mother to not be forced give birth to a baby, defective or unwanted by her. The baby is killed inside the womb because a 'legal issue' is created if you remove from the womb first and then kill it. Also the gruesome procedure allows them to shrink the killed, late term 'little one' to make the procedure easier for the doctor and 'the mother'.

As we judge a wrong and a wrong after removing the issue from legitimate debate in the political arena leaving only street 'justice', we might also take a look at the kill ratios of the 2 martyrs. One killed once wrongly, and the other M-F by occupation.

Regarding prosecution ratios, I don't believe any abortionist killers have ever walked free. Still waiting for our followup from France regarding the prosecution of the peaceful protesters by day who lawlessly torch vehicles by night. Even if they are not one and the same, the 'peaceful' protesters benefit from the intimidation. He who made the false comparison could post the prosecution rate for cars torched and other violent acts in that particularly peaceful French municipality, but that I don't expect.

Repeating, their is no legal issue over aborting to save the life of the mother. That is true in far less than 1% of abortions according to planned parenthood statistics and not banned under any pro-life proposal. And there is no legal issue about prosecuting the accused murderer under the full extent of the law. His action was wrong and it was illegal. Too bad that it is likely in his view that it was the only recourse left to him living in an undemocratic society that rejects the principle of consent of the governed for its most hotly contested life and death issue.

Funny how JDN becomes Mr. Law and Order when an abortion doctor is murdered, but left wing terrorists like Bill Ayers get a pass.

_____________________________________________________________________________**I know that the current narrative from the left/MSM is that the Weather Underground was just a youthful indiscretion to be ignored. Just a reminder of who they killed.**

Editor’s Note: With the recent headlines mentioning the Weather Underground, the focus has been on who said what and who did what when. What has been overlooked, and seemingly forgotten, is the sacrifice of three real American heroes. This article’s only purpose is to honor those three fallen heroes.

If you’ve been keeping up with the presidential race then you’ve likely heard mention the accusations and denials from both campaigns about alleged ties between Senator Barack Obama, the Democratic candidate for president, and Bill Ayers. Plenty has been written about their relationship from both sides of the campaign, and I have absolutely no interest in exploring that relationship further.

I am interested only in honoring the memories of three fallen police officers and holding responsible those who actually planned and committed these murderous attacks against the American people and our criminal justice system.

Ayers, who has long held a position as a college professor in Chicago, has a surprisingly nefarious past. He happens to be the founder of a domestic terrorist group called the Weather Underground, which he has written about extensively in his own memoir, Fugitive Days: A Memoir.

The Weather Underground was responsible for bombing several government targets throughout the 1970s and early 1980s, including the U.S. Capitol, the Pentagon, and a building used by the New York City Police Department. To finance their domestic terrorism activities the group also conducted “traditional” robberies, which occasionally led to murder.

What you don’t usually hear in modern-day news coverage of the group, is that three of those murders were of police officers killed in the line of duty.

On February 16, 1970, a bomb exploded at a San Francisco, California, Police Department substation, fatally wounding Sergeant Brian McDonnell. McDonnell died of his wounds two days later. A second officer, Robert Fogarty was partially blinded by the bomb’s shrapnel. Although the case has never officially been solved, members of the Weather Underground, including Bill Ayers and his wife, Bernardine Dohrn, were prime suspects.

On October 20, 1981, several members of the Weather Underground undertook the robbery of a bank to finance their terrorist activities. During the robbery the group murdered an armored car guard and two members of the Nyack, New York, Police Department – Officer Waverly Brown and Sergeant Edward O’Grady,. a Vietnam War veteran. Unlike with Sergeant McDonnell’s murder, this case was quickly solved and several members of the group were sentenced to lengthy prison terms.

Sergeant McDonnell, Officer Brown, and Sergeant O’Grady were just three of over a dozen law enforcement officers killed by radical, domestic terrorist groups during the 1970s and 1980s. Their memories may be forgotten by those who killed them and walk free – whether through lack of arrest and prosecution in McDonnell’s case or having served their sentences in Brown’s and O’Grady’s cases – but they will never be forgotten by their brothers and sisters in law enforcement.

So Obama wasted no time in making a statement on the abortion doctor's murder, meanwhile one soldier wounded and another murdered in Arkansas by a black muslim convert and he seems to have nothing to say....

But like the TV Show, there are two parts; the police AND the criminal justice system.I believe your own post mentioned, "Although the case has never officially been solved, members of the Weather Underground, including Bill Ayers and his wife, Bernardine Dohrn, were prime suspects." "prime suspects" doesn't mean much in the criminal justice system.

Part of our law and order is innocent until proven guilty. And I can't imagine with police officers tragically being killed, the police and the DA's office didn't tryreal hard to find proof... The result; nothing... They didn't even go to trial and that says a lot...

And sad but true, some murders do matter (get noticed) more than others. In LA we seem to have a murder a day. It doesn't even hit the front page. Heck, it doesn't evenhit the back page, unless it is somebody notable. And then yes, they get all the attention. But even in LA, if you walk into a church, in front of a man's family,and shoot and kill him; I bet that would get front page regardless of who you are, or where you live, or what religion you practice or color you are. That murder wouldget noticed by everyone.

Obama's friend Ayers, formed the terrorist group, other members were convicted of murder and other terrorist acts. Using your logic, Bin Laden should be cleared because he wasn't on any plane on 9/11.

OBAMA or OSAMA? You guess the right answer!

Question 1: Which one of these men had the name of Jesus Christ covered up with plywood before he would enter the room and speak?Answer: Obama at Georgetown University

Question 2: Which one of these two men said "I will stand with my Muslim brothers' if the winds change in an ugly direction"?Answer: Obama in his book Dreams of My Father.

Question 3: Which one of these men associated with admitted terrorists' who bombed U.S. buildings and killed law enforcement officers?Answer: Obama, he was friends and neighbors with U.S. terrorist, William Ayers, and started his political career in Ayer's living room.

Question 4: Which one of these men told Muslim leaders--from inside a Mosque--that America is not a Christian nation?Answer: Obama while he was in the Muslim country, Turkey.

Question 5: Which one of these men bowed down to the Muslim Saudi King, overseer of Mecca and Medina?Answer: Obama during a meeting of world leaders this year.

Question 6: Which one of these men had his subordinates fly extremely low flying jets over Manhattan New York causing citizens to scream and run?Answer: Both

Question 7: Which one of these man refused to acknowledge U.S. prayer day?Answer: Obama, all previous presidents honored the day since its inception.

Question 8: Which one of these men was in Kenya wearing a full Muslim head dress and Islamic clothing? Answer: Obama, when he visited Kenya.

New York -- A U.S. Federal Grand Jury in New York on Nov. 5 issued anindictment against Usama Bin Laden alleging that he and others engagedin a long-term conspiracy to attack U.S. facilities overseas and tokill American citizens.

The indictment noted that Al Qaeda, Bin Laden's internationalterrorist group, forged alliances with the National Islamic Front inSudan and with the government of Iran and with its associated groupHezballah to "work together against their perceived common enemies inthe West, particularly the United States."

Additionally, the indictment states that Al Qaeda reached an agreementwith Iraq not to work against the regime of Saddam Hussein and thatthey would work cooperatively with Iraq, particularly in weaponsdevelopment.

According to the indictment, Bin Laden's group also tried to recruitAmericans to travel through the United States and the West to delivermessages and to conduct financial transactions to aid their terroristactivities. The indictment also states that Al Qaeda used humanitarianwork as a conduit for transmitting funds to affiliate terroristgroups.

The indictment also states that beginning in 1993, Al Qaeda begantraining Somali tribes to oppose the United Nation's humanitarianeffort in Somalia. In October, members of Al Qaeda participated in anattack on U.S. military personnel where 18 soldiers were killed and 73others wounded in Mogadishu. In another reference, the indictmentnoted that an unnamed "co-conspirator" transported weapons andexplosives from Khartoum to Port Sudan for transshipment to the SaudiArabian peninsula.

The Grand Jury document, which usually does not provide a great amountof details in advance of a prosecution, also stated that Bin Laden and"others" tried to develop chemical weapons and attempted to obtainnuclear weapons components in 1993.

The indictment noted that Bin Laden issued his Declaration of Jihadwith the aim of recruiting others to "kill Americans and encouragedother persons to join the jihad against the American enemy."

Following is the text of the indictment:

(Begin text)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

- V-

USAMA BIN LADEN,

a/k/a "Usamah Bin-Muhammad Bin-Laden,"

a/k/a "Shaykh Usamah Bin-Laden,"

a/k/a "Mujahid Shaykh,"

a/k/a "Abu Abdallah,"

a/k/a "Qa Qa,"

Defendant

COUNT ONE

Conspiracy to Attack Defense Utilities of the United States

The Grand Jury charges:

Background: Al Qaeda

1. At all relevant times from in or about 1989 until the date of thefiling of this Indictment, an international terrorist group existedwhich was dedicated to opposing non-Islamic governments with force andviolence. This organization grew out of the "mekhtab al Khidemat" (the"Services Office") organization which had maintained (and continues tomaintain) offices in various parts of the world, includingAfghanistan, Pakistan (particularly in Peshawar) and the UnitedStates, particularly at the Alkifah Refugee Center - in Brooklyn. Fromin or about 1989 until the present, the group called itself "Al Qaeda"("the Base"). From 1989 until in or about 1991, the group washeadquartered in Afghanistan and Peshawar, Pakistan. In or about 1992,the leadership of Al Qaeda, including its "emir" (or prince) USAMA BINLADEN the defendant, and its military command relocated to the Sudan.From in or about 1991 until the present, the group also called itselfthe "Islamic Army." The international terrorist group (hereafterreferred to as "Al Qaeda") was headquartered in the Sudan fromapproximately 1992 until approximately 1996 but still maintainedoffices in various parts of the world. In 1996, USAMA BIN LADEN and AlQaeda relocated to Afghanistan. At all relevant times, Al Qaeda wasled by its "emir," USAMA BIN LADEN. Members of Al Qaeda pledged anoath of allegiance to USAMA BIN LADEN and Al Qaeda.

2. Al Qaeda opposed the United States for several reasons. First, theUnited States was regarded as "infidel" because it was not governed ina manner consistent with the group's extremist interpretation ofIslam. Second, the United States was viewed as providing essentialsupport for other "infidel" governments and institutions, particularlythe governments of Saudi Arabia and Egypt, the nation of Israel andthe United Nations, which were regarded as enemies of the group.Third, Al Qaeda opposed the involvement of the United states armedforces in the Gulf War in 1991 and in Operation Restore Hope inSomalia in 1992 and 1993. In particular, Al Qaeda opposed thecontinued presence of American military forces in Saudi Arabia (andelsewhere on the Saudi Arabian peninsula) following the Gulf war.Fourth, Al Qaeda opposed the United States Government because of thearrest, conviction and imprisonment of persons belonging to Al Qaedaor its affiliated terrorist groups, including Sheik Omar Abdel Rahman.

3. Al Qaeda has functioned both on its own and through some of theterrorist organizations that have operated under its umbrella,including: the Islamic Group (also known as "al Gamaa Islamia" orsimply "Gamaa't"), led by co-conspirator Sheik Oxar Abdal Rahman; theal Jihad group based in Egypt; the "Talah e Fatah" ("Vanguards ofconquest") faction of al Jibad, which was also based in Egypt, Whichfaction was led by co-conspirator Ayman al Zawahiri ("al Jibad");Palestinian Islamic Jihad and a number of Jihad groups in othercountries, including Egypt, the Sudan, Saudi Arabia, Yemen, Somalia,Eritrea, Kenya, Pakistan, Bosnia, Croatia, Algeria, Tunisia, Lebanon,the Philippines, Tajikistan, Chechnya, Bangladesh, Kashmir andAzerbaijan. In February 1998, Al Qaeda joined forces with Gamaa't, AlJihad, the Jihad Movement in Bangladesh and the "Jamaat ul Ulema ePakistan" to issue a fatwah (an Islamic religious ruling) declaringwar against American civilians worldwide under the banner of the"International Islamic Front for Jibad on the Jews and Crusaders."

4. Al Qaeda also forged alliances with the National Islamic Front inthe Sudan and with the government of Iran and its associated terroristgroup Hezballah for the purpose of working together against theirperceived common enemies in the West, particularly the United States.In addition, al Qaeda reached an understanding with the government ofIraq that al Qaeda would not work against that government and that onparticular projects, specifically including weapons development, alQaeda would work cooperatively with the Government of Iraq.

5. Al Qaeda had a command and control structure which included amajlis al shura (or consultation council) which discussed and approvedmajor undertakings, including terrorist operations.

6. Al Qaeda also conducted internal investigations of its members andtheir associates in an effort to detect informants and killed thosesuspected of collaborating with enemies of Al Qaeda.

7. From at least 1991 until the date of the filing of this Indictment,in the Sudan, Afghanistan and elsewhere out of the jurisdiction of anyparticular state or district, USAMA BIN LADEN, a/k/a "UsamahBin-Muhammad Bin-Laden," a/k/a "Shaykh Usamah Bin-Laden," a/k/a"Mujahid Shaykh," a/k/a "Abu Abdallah," a/k/a "Qa Qa," the defendant,and a co-conspirator not named as a defendant herein (hereafter"Co-conspirator") who was first brought to and arrested in theSouthern District of New York, and others known and unknown to thegrand jury, unlawfully, willfully and knowingly combined conspired,confederated and agreed together and with each other to injure anddestroy, and attempt to injure and destroy, national-defense material,national-defense premises and national-defense utilities of the UnitedStates with the intent to injure, interfere with and obstruct thenational defense of the United states.

Overt Acts

8. In furtherance of the said conspiracy, and to effect the illegalobject thereof, the following overt acts, among others, werecommitted:

a. At various times from at least as early as 1991 until at least inor about February 1998, USAMA BIN LADEN, the defendant, met withCo-conspirator and other members of Al Qaeda in the Sudan, Afghanistanand elsewhere;

b. At various times from at least as early as 1991, USAMA BIN LADEN,and others known and unknown, made efforts to obtain weapons,including firearms and explosives, for Al Qaeda and its affiliatedterrorist groups;

c. At various times from at least as early as 1991 USAMA BIN LADEN,and others known and unknown, provided training camps and guest housesin various areas, including Afghanistan and the Sudan, for the use ofAl Qaeda and its affiliated terrorist groups;

d. At various times from at least as early as 1991, USAMA BIN LADEN,and others known and unknown, made efforts to produce counterfeitpassports purporting to be issued by various countries and alsoobtained official passports from the Government of the Sudan for useby Al Qaeda and its affiliated groups;

e. At various times from at least as early as 1991, USAMA BIN LADEN,and others known and unknown, made efforts to recruit United Statescitizens to Al Qaeda in order to utilize the American citizens fortravel throughout the Western world to deliver messages and engage infinancial transactions for the benefit of Al Qaeda and its affiliatedgroups;

f. At various times from at least as early as 1991, USAMA BIN LADEN,and others known and unknown, made efforts to utilize non-Governmentorganizations which purported to be engaged in humanitarian work asconduits for transmitting funds for the benefit of Al Qaeda and itsaffiliated groups;

g. At various times from at least as early as 1991, Co-conspirator andothers known and unknown to the grand jury engaged in financial andbusiness transactions on behalf of defendant USAMA BIN LADEN and AlQaeda, including, but not limited to: purchasing land for trainingcamps; purchasing warehouses for storage of items, includingexplosives; transferring funds between bank accounts opened in variousnames, obtaining various communications equipment, including satellitetelephones and transporting currency and weapons to members of AlQaeda and its associated terrorist organizations in various countriesthroughout the world;

h. At various times from in or about 1992 until the date of the filingof this Indictment, USAMA BIN LADEN and other ranking members of AlQaeda stated privately to other members of Al Qaeda that Al Qaedashould put aside its differences with Shiite Muslim terroristorganizations, including the Government of Iran and its affiliatedterrorist group Hezballah, to cooperate against the perceived commonenemy, the United States and its allies;

i. At various times from in or about 1992 until the date of the filingof this Indictment, USAMA BIN LADEN and other ranking members of AlQaeda stated privately to other members of Al Qaeda that the UnitedStates forces stationed on the Saudi Arabian peninsula, including bothSaudi Arabia and Yemen, should be Attacked;

j. At various times from in or about 1992 until the date of the filingof this Indictment, USAMA BIN LADEN and other ranking members of AlQaeda stated privately to other members of Al Qaeda that the UnitedStates forces stationed in the Horn of Africa, including Somalia,should be attacked;

k. Beginning in or about early spring 1993, Al Qaeda members began toprovide training and assistance to Somali tribes opposed to the UnitedNations intervention in Somalia;

l. On October 3 and 4, 1993, members of Al Qaeda participated withSomali tribesmen in an attack on United States military personnelserving in Somalia as part of Operation Restore Hope, which attackkilled a total of 18 United States soldiers and wounded 73 others inMogadishu;

m. On two occasions in the period from in or about 1992 until in orabout 1995, Co-conspirator helped transport weapons and explosivesfrom Khartoum to Port Sudan for transshipment to the Saudi Arabianpeninsula;

n. At various times from at least as early as 1993, USAMA BIN LADENand others known and unknown, made efforts to obtain the components ofnuclear weapons;

o. At various times from at least as early as 1993 USAMA BIN LADEN andothers known and unknown, made efforts to produce chemical weapons;

p. On or about August 23, 1996, USAMA BIN LADEN signed and issued adeclaration of Jihad entitled "Message from Usamah Bin-MuhammadBin-Laden to His Muslim Brothers in the Whole World and Especially inthe Arabian Peninsula: Declaration of Jihad Against the AmericansOccupying the Land of the Two Holy Mosques; Expel the Heretics fromthe Arabian Peninsula" (hereafter the "Declaration of Jihad) from theHindu Kush mountains in Afghanistan. The Declaration of Jihad includedstatements that efforts should be pooled to kill Americans andencouraged other persons to join the jihad against the Americanenemy";

q. In or about late August 1996, USAMA BIN LADEN read aloud theDeclaration of Jihad and made an audiotape recording of such readingfor worldwide distribution; and

r. In February 1998, USAMA BIN LADEN issued a joint declaration in thename of Gamaa't, Al Jihad, the Jihad movement in Bangladesh and the"Jamaat ul Ulema e Pakistan" under the banner of the "InternationalIslamic Front for Jihad on the Jews and Crusaders," which stated thatMuslims should kill Americans -- including civilians -- anywhere inthe world where they can be found.

Now, you'll note that nowhere in the above indictment do you see Bin Laden accused of any direct terrorist act.

Your quote said,"A U.S. Federal Grand Jury in New York on Nov. 5 issued anindictment against Usama Bin Laden alleging that he and others engagedin a long-term conspiracy to attack U.S. facilities overseas and tokill American citizens."

Sounds like a terrorist act to me...

But catch him if you can. That's the problem. If you did, I don't think the trial would take long;and probably he would be found guilty.

Ayers (I am not defending him, just the system) was never indicted. More important,he was NEVER brought to trial although he was obviously available and findable (just drop byChicago). That tells you, there was/is NO case. Sorry. You are in Law Enforcement; you knowthe law...

As for your previous post, that has what to do with Legal Issues???And (he's says he is not) is there something wrong with having a Muslim President?Or a Jewish one? Or a Buddhist? Or??? Where does it say the President has to be Christian?And we are NOT a Christian nation. Jews are not Christian. Are they not a part of our nation?All religions are welcome. That's my point.

Now, you'll note that nowhere in the above indictment do you see Bin Laden accused of any direct terrorist act.

Your quote said,"A U.S. Federal Grand Jury in New York on Nov. 5 issued anindictment against Usama Bin Laden alleging that he and others engagedin a long-term conspiracy to attack U.S. facilities overseas and tokill American citizens."

Sounds like a terrorist act to me...

**It's specifically a conspiracy crime, which differs from a direct criminal act. The person that actually pulls a trigger or detonates the bomb can be prosecuted for that act. The conspiracy charge can be used to prosecute those in the organizational structure that plan and give orders, but never get their hands dirty with direct action.**

But catch him if you can. That's the problem. If you did, I don't think the trial would take long;and probably he would be found guilty.

**Under Obama, it would be the world's biggest circus, with legions of ACLU types stampeding to defend him while he used it as a platform to spew propaganda.**

Ayers (I am not defending him, just the system) was never indicted.

**Yes he was, but the case was dropped for prosecutorial misconduct. The FBI had been wiretapping Ayers and others without warrants in some cases. Thank the Atty. General and Deep Throat (Assist. Director of the FBI, Mark Felt)**

More important,he was NEVER brought to trial although he was obviously available and findable (just drop byChicago). That tells you, there was/is NO case.

**There was a case, but it was fcuked up.**

Sorry. You are in Law Enforcement; you knowthe law...

As for your previous post, that has what to do with Legal Issues???And (he's says he is not) is there something wrong with having a Muslim President?

**It would be like having a nazi president during WWII, you want someone in the office who wants our side to win. Not someone trying to undercut the nation to assist our enemies.**

Or a Jewish one? Or a Buddhist? Or??? Where does it say the President has to be Christian?And we are NOT a Christian nation. Jews are not Christian. Are they not a part of our nation?All religions are welcome. That's my point.

**Our culture, what is left of it is judeo-christian in nature. Our fundamental ideals flow from that perspective. The vast majority of citizens identify as some version of christian. No one is forced to be any religion, but our system is based on the public sharing a common sense of morality and self control based on judeo-christian ethics.**

So, note that aside from all the destruction done by Obama and his abandonment of Israel, note how he, like you was verbally condemning the murder of Dr. Tiller, yet silent of the murder of one soldier and wounding of another by a fellow traveler. So, yes, he loyalty is very much in question, though day by day it seems clearer where his loyalty lies. It isn't with America.

Declared "war on Amerikkka" at its Flint War Council in 1969Responsible for the deaths of police officers and the wanton destruction of public propertySome former members are now comfortably ensconced in University professorships

Weatherman (known colloquially as The Weathermen) was a political faction elected in 1968 to lead the radical group Students for a Democratic Society (SDS). The organization took its name from a line in the Bob Dylan song Subterranean Homesick Blues ("You don't need a weatherman to know which way the wind blows"). Emerging in 1969 as the most militant wing of the SDS's Revolutionary Youth Movement, the fledgling Weatherman issued a "manifesto" eschewing nonviolence and calling instead for armed opposition to U.S. policies; advocating the overthrow of capitalism; exhorting white radicals to trigger a worldwide revolution by fighting in the streets of the "mother country"; and proclaiming that the time had come to launch a race war against the "white" United States on behalf of the non-white Third World.

Grounded in identity politics, Weatherman ideology and rhetoric rebelled against what later came to be known as America's "white skin privilege." Weatherman opposed the strategy of a rival SDS faction, Progressive Labor, which rejected the sexual and chemical excesses of the counter-cultural movements of the 1960s in favor of a purer, Marxist-Leninist popular front movement aimed at developing student-labor alliances.

FBI files from 1976, recently made public under the Freedom of Information Act, confirm the connections between Weatherman, Havana, and Moscow. Weatherman leaders like Mark Rudd traveled illegally to Havana in 1968 to engage in terrorist training. There, camps set up by Soviet KGB Colonel Vadim Kotchergine were educating Westerners both in Marxist philosophy and urban warfare.

At a 1969 "War Council" in Flint, Michigan, Weatherman leader Bernardine Dohrn (currently a law professor at Northwestern University and a Board member of the ACLU) praised the serial murderer Charles Manson and his accomplices: "Dig it. First they killed those pigs, then they ate dinner in the same room with them. They even shoved a fork into the victim's stomach. Wild." She then proclaimed that the time had come to launch a war against "Amerikkka" (Weatherman always spelled "America" this way, to convey the group's belief that the nation was ineradicably racist to its core). Toward this end, Dohrn advocated the formation of an even more radical "Weather Underground" cult to carry out covert terrorist activities rather than public acts of protest. By early 1970, her wish would be realized.

Weatherman's first public demonstration was its October 1969 "Days of Rage" protest in Chicago, timed to coincide with the trials of the Chicago Seven (a group of radical leftists led by Tom Hayden), who had fomented a riot at the Democratic Party nominating convention in that city the previous year. Advertised with the slogan "Bring the war home," "Days of Rage" sought to create enough chaos to shock the American public out of its alleged complacency vis a vis the Vietnam War.

The opening "Days of Rage" salvo, designed to glorify the anarchist movement, was the October 8 demolition of a statue dedicated to the memory of eight policemen who had been killed in the Haymarket Labor Riot of 1886. Thereafter, some 300 people -- both members and supporters of the Weatherman agenda -- ravaged Chicago's business district, smashing windows and destroying automobiles. Six people were shot and seventy were arrested. The violence continued, though on a smaller scale, for each of the next two nights. As Sixties historian Todd Gitlin observed, however, no popular uprising was sparked by these events, much to the group's dismay. Notable "Days of Rage" leaders included Bill Ayers, now a Professor of Education at the University of Illinois, and Mark William Rudd, currently a mathematics professor at a New Mexico community college.

Weatherman was further radicalized by the December 1969 shooting death of Black Panther leader Fred Hampton by Chicago police. Hampton was a street thug who, in his much-heralded "morning education" programs, taught black youths that violent opposition to the U.S. government was a worthy goal. He was quoted in a 1969 Chicago Sun-Times article as saying, "I am at war with the pigs," and forecasting an armed struggle between blacks and whites. He routinely carried weapons and instructed his subordinates to do the same. For Weatherman, Hampton's death provided one more excuse to pursue a revolutionary agenda. In March 1970 the organization issued a "Declaration of a State of War" against the United States government, using for the first time its new name, the "Weather Underground Organization" (WUO), adopting fake identities, and pledging to pursue covert activities only.

Shortly after that Declaration was made public, three members of the Weather Underground accidentally killed themselves in a Manhattan townhouse while attempting to build a powerful bomb they had intended to plant at a social dance in Fort Dix, New Jersey -- an event that was to be attended by U.S. Army soldiers. Hundreds of lives could have been lost had the plot been successfully executed.

The Weather Underground went on to claim credit for some 25 bombings over the next several years, detonating explosives at the rebuilt Haymarket statue, a bathroom at the Pentagon, the Capitol barber shop, the New York City police headquarters, and a variety of other targets.

The Weather Underground also (for a fee of $25,000) helped psychedelic drug guru Timothy Leary break out of a California prison and arranged for his transport to Algiers. When Leary was re-arrested in 1974, he cooperated in the FBI investigation of WUO in exchange for a lighter sentence.

By the time the U.S. withdrew its military forces from Vietnam in 1975, the Weather Underground was clearly losing vitality as an organization, having failed to invigorate a new radical movement in the U.S. or to inspire an all-out war against the government. In the wake of President Jimmy Carter's amnesty for draft dodgers, members of the group began to emerge from hiding. Many were never prosecuted; others had their convictions overturned. Some, like Rudd, Dohrn, and Ayers, claimed places for themselves in academia, while others attempted to return to the mainstream.

On October 20, 1981 -- long after the Weather Underground had ceased to exist -- former Underground member Kathy Boudin and her soon-to-be husband, David Gilbert, were accomplices in the robbery of a Brinks armored car in Nyack, New York. In the course of that heist, one Brinks guard and two Nyack police officers were murdered. Also involved in the robbery was Judith Clark, who had served a prison term for her participation in the "Days of Rage." Boudin hired attorney Leonard Weinglass, a law partner of her father, to defend her in the case. Weinglass arranged for a plea bargain whereby Boudin pled guilty to one count of felony murder and robbery, in exchange for a prison sentence of twenty years to life. She was paroled in 2003, however, over strong opposition from New York State police. Gilbert remains in New York's Attica State Prison, having refused to bargain.

In 1985, former Weather Underground members Susan Rosenberg (who also was implicated in the Nyack robbery) and Linda Evans were apprehended while transporting 740 pounds of explosives which they both acknowledged were slated for use in additional bombings. Rosenberg was sentenced to 58 years in prison, Evans 40; President Bill Clinton pardoned both women in January 2001.

Bill Ayers: Unrepentant LYING Terrorist [Andy McCarthy]In that Fox interview that Rich linked to, Ayers preposterously claimed that he and his fellow Weather Underground terrorists did not really intend to harm any people — the fact that no one was killed in their 20 or so bombings was, he said, "by design"; they only wanted to cause property damage:

Between October 1969 and September 1973, the Weather Underground claimed credit for some twenty bombings across the country, in which no one was harmed — save the three cell members who perished in a Greenwich Village townhouse in March 1970, when one of their creations detonated prematurely. Ayers claimed the fact that no other individuals were killed as a result of the Weathermen’s actions was “by design.”In his autobiography, Fugitive Days: A Memoir, Ayers recalled, he posed the question: “How far are you willing to take that step into what I consider the abyss of violence? And we really never did, except for that moment in the townhouse.… I actually think destroying property in the face of that kind of catastrophe is so — restrained. And I don’t see it as a big deal.

Right.

First of all, "that moment in the townhouse" he's talking about happened in 1970. Three of his confederates, including his then girlfriend Diana Oughton, were accidentally killed when the explosive they were building to Ayers specifications (Ayers was a bomb designer) went off during construction. As noted in Ayers' Discover the Networks profile, the explosive had been a nail bomb. Back when Ayers was being more honest about his intentions, he admitted that the purpose of that bomb had been to murder United States soldiers:

That bomb had been intended for detonation at a dance that was to be attended by army soldiers at Fort Dix, New Jersey. Hundreds of lives could have been lost had the plan been successfully executed. Ayers attested that the bomb would have done serious damage, "tearing through windows and walls and, yes, people too."

In fact, Ayers was a founder of the Weatherman terror group and he defined its purpose as carrying out murder. Again, from Discover the Networks:

Characterizing Weatherman as "an American Red Army," Ayers summed up the organization's ideology as follows: "Kill all the rich people. Break up their cars and apartments. Bring the revolution home, Kill your parents."

Now he wants you to think they just wanted to break a few dishes. But in his book Fugitive Days, in which he boasts that he "participated in the bombings of New York City Police Headquarters in 1970, of the Capitol building in 1971, and the Pentagon in 1972," he says of the day that he bombed the Pentagon: "Everything was absolutely ideal. ... The sky was blue. The birds were singing. And the bastards were finally going to get what was coming to them."

And he wasn't singular. As I noted back in April in this article about Obama's motley collection of radical friends, at the Weatherman “War Council” meeting in 1969, Ayers' fellow terrorist and now-wife, Bernadine Dohrn, famously gushed over the barbaric Manson Family murders of the pregnant actress Sharon Tate, coffee heiress Abigail Folger, and three others: “Dig it! First they killed those pigs, then they ate dinner in the same room with them. They even shoved a fork into the victim’s stomach! Wild!” And as Jonah recalled yesterday, "In appreciation, her Weather Underground cell made a threefingered 'fork' gesture its official salute." They weren't talking about scratching up the wall-paper.

A Weatherman affiliate group which called itself "the Family" colluded with the Black Liberation Army in the 1981 Brinks robbery in which two police officers and an armed guard were murdered. (Obama would like people to believe all this terrorist activity ended in 1969 when he was eight years old. In fact, it continued well into the eighties.) Afterwards, like Ayers and Dohrn, their friend and fellow terrorist Susan Rosenberg became a fugitive.

On November 29, 1984, Rosenberg and a co-conspirator, Timothy Blunk, were finally apprehended in Cherry Hill, New Jersey. At the time, they were actively planning an unspeakable bombing campaign that would have put at risk the lives of countless innocent people. They also possessed twelve assorted guns (including an Uzi 9 mm. semi-automatic rifle and an Ithaca twelve-gauge shotgun with its barrel sawed off), nearly 200 sticks of dynamite, more than 100 sticks of DuPont Trovex (a high explosive), a wide array of blasting agents and caps, batteries, and switches for explosive devices. Arrayed in disguises and offering multiple false identities to arresting officers, the pair also maintained hundreds of false identification documents, including FBI and DEA badges.When she was sentenced to 58 years' imprisonment in 1985, the only remorse Rosenberg expressed was over the fact that she and Blunk had allowed themselves to be captured rather than fighting it out with the police. Bernadine Dohrn was jailed for contempt when she refused to testify against Rosenberg. Not to worry, though. On his last day in office, the last Democrat president, Bill Clinton, pardoned Rosenberg — commuting her 58-year sentence to time-served.

These savages wanted to kill massively. That they killed only a few people owes to our luck and their incompetence, not design. They and the Democrat politicians who now befriend and serve them can rationalize that all they want. But those are the facts.

Abdulhakim Mujahid Muhammad, flanked by his attorney, enters a not guilty plea in an Arkansas courtroom. The Muslim convert is facing capital murder charges in connection with Monday's shooting of two U.S. Army recruiters in Little Rock (Arkansas Democrat-Gazette photo).

After an anti-abortion extremist killed Kansas physician George Tiller on Sunday, the Obama Justice Department swung into action. Just hours after the shooting, Attorney General Eric Holder announced added security for selected abortion providers and the clinics where they work.

A spokesman for the U.S. Marshal's Service has confirmed that federal agents would be guarding abortion doctors and medical offices in the coming days, though the scope of the security operation remains unclear.

Readers will note that Mr. Holder offered no public reaction just 24 hours later, when two U.S. Army soldiers were gunned down outside a recruiting office in Little Rock, Arkansas. Privates William Long and Quinton Ezeagwula were shot by 23-year-old Abdulhakim Mujahid Muhammad, a Muslim convert who spent time in Yemen.

Long died from his injuries at a Little Rock hospital a short time after the shooting; Ezeagwula, who was shot in the neck, is expected to survive.

Both soldiers were recent graduates of basic training, participating in the "Hometown Recruiter" assistance program. Long and Ezeagwula were assigned to the Little Rock office for two weeks, talking to friends and family members about opportunities offered by the Army. The hometown recruiter program has been in existence for more than 30 years, and dates back to the earliest days of the all-volunteer military.

Appearing in court today, Muhammad entered a "not guilty" plea to capital murder charges in connection with the shootings. A prosecutor said the suspect admitted to targeting the soldiers, and said he "would have shot more" had other recruiters been outside. Muhammad also told investigators that he was "upset" over the military's treatment of Muslims.

There are literally hundreds of armed forces recruiting stations across the country, but despite Monday's deadly attack, Mr. Holder apparently sees no need for added security. Never mind that recruiters are unarmed and their offices are (typically) located in storefronts, behind pane-glass windows and doors. While some recruiting centers have added security measures in recent years, most are unprotected. Comparatively speaking, a typical abortion clinic is far more secure than a military recruiting center in the same community.

And never mind that recruiting stations have been the target of an escalating campaign of harassment, intimidation and violence in recent years. Michelle Malkin has chronicled scores of attacks across the country in recent years, but the anti-recruiter campaign has received virtually no attention from the MSM. Given the media's indifference--and the Democratic Party's cozy alliance with the anti-war left--it's no surprise that Mr. Holder is unconcerned about attacks on military recruiters.

But that position may come back to haunt the attorney general and his boss, President Obama. Early reports suggest the Little Rock suspect spent several years in Yemen after his conversion to Islam, and one source indicated that Muhammed may have traveled on a Somali passport. Additionally, the FBI has confirmed that it's anti-terror division was investigating Muhammad before the shooting (emphasis ours).

While Federal authorities have uncovered no evidence of a wider conspiracy (at least not yet), there's much we don't know about the former Carlos Bledsoe. What prompted his conversion to Islam, and how did he make it to Yemen, a hotspot for jihad? Did he come in contact with former Gitmo detainees who migrated to that Middle Eastern nation, and have become a key part of the local Al Qaida affiliate? Was there a Somali connection, and finally, what brought Mr. Muhammad back to the U.S. and sent him on that murderous rampage?

At this point, answers to those questions are in short supply. We have no doubt that the FBI will conduct a professional investigation, but there's a larger issue that must be resolved, since it will set the tone for the inquiry. Simply stated, as the probe unfolds, will Mr. Obama allow his Justice Department to follow all leads, regardless of where they lead?

Thirteen years ago, another Democratic President (Bill Clinton) had an opportunity to aggressively pursue a terror investigation. But he thwarted an FBI probe into the 1996 Khobar Towers bombing, believing the search for Iranian masterminds would undermine his overtures toward Tehran.

Obviously, the shootings in Little Rock are vastly different that the massive truck bomb that devastated our military barracks in Saudi Arabia, killing 19 airmen. But the saga of Abdul Hakim Mujahid Muhammad has foreign elements that must be investigated. There's every chance that Mr. Muhammad acted alone, but there is also the possibility that he had assistance and influence from individuals abroad.

As Mr. Obama prepares for his Cairo speech, he might consider a proper balance between building better relations with the Muslim world, and protecting U.S. citizens from its most radical elements. Mr. Muhammad is a product of that environment, and the family of Private Long has every right to know how those elements influenced his murder. They should also ask Mr. Holder why abortion doctors deserve federal protection ahead of our military recruiters.

ON THE MORNING OF THE ATTACKS on the World Trade Center and the Pentagon, along with a million other readers of the New York Times including many who would never be able to read the paper again, I opened its pages to be confronted by a color photo showing a middle-aged couple holding hands and affecting a defiant look at the camera. The article was headlined in an irony that could not have been more poignant, "No Regrets For A Love Of Explosives." The couple pictured were Bill Ayers and Bernardine Dohrn, former leaders of the 1960s’ Weather Underground, America’s first terrorist cult. One of their bombing targets, as it happened, was the Pentagon.

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"I don’t regret setting bombs," Ayers was quoted in the opening line of the Times profile; "I feel we didn’t do enough." In 1969, Ayers and his wife convened a "War Council" in Flint Michigan, whose purpose was to launch a military front inside the United States with the purpose of helping Third World revolutionaries conquer and destroy it. Taking charge of the podium, dressed in a high-heeled boots and a leather mini-skirt – her signature uniform – Dorhn incited the assembled radicals to join the war against "Amerikkka" and create chaos and destruction in the "belly of the beast." Her voice rising to a fevered pitch, Dohrn raised three fingers in a "fork salute" to mass murderer Charles Manson whom she proposed as a symbol to her troops. Referring to the helpless victims of the Manson Family as the "Tate Eight" (the most famous was actress Sharon Tate) Dohrn shouted:

Dig It. First they killed those pigs, then they ate dinner in the same room with them, they even shoved a fork into a victim’s stomach! Wild!Embarrassed today by this memory, but unable to expunge it from the record and unwilling to repudiate her terrorist deeds, Dorhn resorts to the lie direct. "It was a joke," she told the sympathetic Times reporter, Dinitia Smith; she was actually protesting America’s crimes. "We were mocking violence in America. Even in my most inflamed moment I never supported a racist mass murderer." In 1980, I taped interviews with thirty members of the Weather Underground who were present at the Flint War Council, including most of its leadership. Not one of them thought Dohrn was anything but deadly serious. Outrageous nihilism was the Weatherman political style. As soon as her tribute to Manson was completed, Dohrn was followed to the Flint platform by another Weather leader who ranted, "We’re against everything that’s ‘good and decent’ in honky America. We will loot and burn and destroy. We are the incubation of your mothers’ nightmares."It has long been a fashion among media sophisticates to ridicule the late J. Edgar Hoover and the FBI men who sought to protect Americans from the threats posed by people like Ayers and Dohrn in their "days of rage." But Hoover’s description of Bernardine Dohrn as "La Pasionara of the lunatic left" is far more accurate than anything that can be found in the Times profile.

Instead of a critique of this malignant couple and their destructive resume, the Times’ portrait provides a soft-focus promotion for Ayers’ newly published Fugitive Days, a memoir notable for its dishonesty and its celebration of his malevolent exploits. Ayers’ text wallows in familiar Marxist incitements and the homicidal delusions of Sixties radicalism, including a loving reprint of an editorial from the old socialist magazine Alarm! Written by Albert Parsons, one of the Haymarket anarchists, whom the Weathermen idolized:

Dynamite! Of all the good stuff, that is the stuff! Stuff several pounds of this sublime stuff into an inch pipe…plug up both ends, insert a cap with a fuse attached, place this in the immediate vicinity of a lot of rich loafers who live by the sweat of other people’s brows, and light the fuse. A most cheerful and gratifying result will follow. In giving dynamite to the downtrodden millions of the globe, science has done its best work.In Fugitive Days, Ayers has written – and the Times promoted – a text that the bombers of the World Trade Center could have packed in their flight bags alongside the Koran, as they embarked on their sinister mission. "Memory is a motherf*cker," Ayers warns his readers, in the illiterate style that made him an icon of the New Left. It is as close as he gets to acknowledging that his account leaves World Trade Center size holes in the story of his criminal past. Among them is its second half, how Weatherman imploded in the year other Americans were celebrating the bicentennial of their nation. It imploded because the devotion of the terrorists to the bibles of the cause – Lenin, Stalin, Mao – eventually led them into a series of brainwashing rituals and purges that decimated their ranks. None of this is remembered in Ayers’ book. Nor is the passage of their closest comrades into the ranks of the May 19th Communist Movement, which murdered three officers – including the first black policeman on the Nyack force, during an infamous robbery of a Brinks armored car in 1981. Caveat emptor. The point of the omissions is to hide from others (and from Ayers himself) the real-world consequences of the anti-American ideologies, which took root in the Sixties and now flourish on college campuses across the country.

Today William Ayers is not merely an author favored by the New York Times, but a Distinguished Professor of Education at the University of Illinois, Chicago. His Lady Macbeth is not merely a lawyer, but a member of the American Bar Association’s governing elite, as well as the director of Northwestern University’s Children and Family Justice Center. These facts reflect a reality about the culture of facile defamation of America and ready appeasement of her mortal enemies, that confronts us as we struggle to deal with the terrorist attack.

The President has correctly defined the repulsive deed that has left 10,000 dead as an "act of war." This, it must be said, is a very belated recognition of our reality, which was postponed for almost a decade by an Administration infused with the attitudes of self-flagellation and moral equivalence perfectly expressed on the day of the attack by John Lahr, a writer for the Microsoft Internet journal Slate. On the day of the attack that crushed to death and burned alive 10,000 innocent civilians at their workplace, John Lahr advised America to "Rush to Thought, Not to Judgment."

I fear the hysteria in the American character, which splits so easily into good and bad, which rushes to judgment rather than to thought. The terrorists have taken aim at the American government and American capitalism and brought them both – symbolically at least – down. America, from the point of view of the terrorists, has been humiliated and brutalized as they feel they have felt humiliated and brutalized by America.This is the we-feel-your-terrorist-pain, appeasement perspective perfectly tuned. The hysteria in the American character! A character that permitted fanatical America-haters to bomb the World Trade Center not once but twice without so much as instituting serious security at its airports, lest the American Civil Liberties Union and other members of the appeasement coalition take their government to court to ensure that terrorists, too, have civil liberties. Hysterically "anti-Islamic" America, which during the Clinton years forbade its intelligence operatives from using "human rights violators" as intelligence assets to prevent such terrorist attacks. Who in these Middle Eastern thugdoms with any access to authority or power let alone terrorist networks is not a human rights violator? Liberal self-hatred masquerading as a concern for human rights was the primary reason why it was so easy for a complicated and lethal attack to be planned and carried out without coming to the attention of American intelligence agencies. It was more important for the Clinton Administration to be sensitive to the utopian concerns of the progressive elites and the one-world kleptocrats who make up the UN than to protect the American people.

America the brutalizer! Osama bin Laden our terrorist enemy and mass murderer is not exactly one of your huddled masses. He is a Saudi prince! Sheik Abdel Rahman, architect of the first World Trade Center bombing is a sheik! Brutalization is not their problem. They are brutes! Like other radical zealots they are driven by a religious fanaticism confident that God is on their side and those who do not share their faith – in our case, Christians and Jews – are infidels, worthy of destruction. In Palestinian schools in democratic Israel, Palestinian school children are taught by their Palestinian teachers to chant "Destroy the heathen Jews." Register it. Not those who have injured them, but those who are not Muslims. Religious fanaticism will express itself in political – and eventually military – fanaticism whatever you do. Ask not, Americans, what your country has done to deserve its pain. Ask what has been done to inflict pain on your country and what you can do about it.

In May 1998, three years before the World Trade Center bombing, Osama bin Laden was interviewed by ABC News reporter John Miller. He explained his war this way:

John Miller: Mr. Bin Laden, you have issued a fatwa [death sentence] calling on all Muslims to kill Americans where they can, when they can. Is that directed at all Americans, just American military, just Americans in Saudi Arabia?Osama bin Laden: Allah ordered us … to purify Muslim land of all non-believers,… We are surprised this question is coming from Americans…. American history does not distinguish between civilians and military, and not even women and children. They are the ones who used the bombs against Nagasaki…. America does not have a religion that will prevent it from destroying all people…. We believe that the biggest thieves in the world and the terrorists are the Americans… We are sure of Allah’s victory and our victory against the Americans and the Jews as promised by the prophet peace be upon him….We predict a black day for America and the end of the United States as United States…

Is this clear enough? This holy war is not about American acts. It is about who we are. It is not a war that can be negotiated. It is them or us.This is the hour for America to take care of itself; to take steps to defend itself. America must be hard where it has been soft, calculating where it has been sensitive, strong where it has been weak. Osama bin Laden is impressed with American weakness, the very kind of weakness urged again on America in this crisis, by appeasers like John Lahr. Rush to thought, not judgment:

Osama bin Laden: We have seen in the last decade the decline of the American government and the weakness of the American soldier who is ready to wage Cold Wars and unprepared to fight long wars. This was proven in Beirut when Marines fled after two explosions. It also proves they can run in less than 24 hours, and this was also repeated in Somalia. We are ready for all occasions. We rely on Allah. On the day of the World Trade Center bombing, I appeared on a Fox TV program in San Diego and did my best to steer the discussion towards the steps America must take to defend herself, to carry the war to the enemy camp. But the host would have none of it. While thousands of Americans writhed in agony in the twisted steel of the Trade Center, she wanted to discuss the danger of American "hysteria," the "threat" that American prejudice might pose to Muslims in our midst. It did not even occur to her that if Americans were prejudiced in a way that made this issue pressing, these terrorists would never have been trained as pilots by American companies, housed in American homes, or ignored by American security agents at the airports where they hijacked the airliners in order to convert them into bombs. Bill Ayers and Bernardine Dohrn are a far more typical academic couple, and their NY Times interlocutor a far more familiar arbiter of information to the American public than is comforting to consider. We have already been treated to TV images of college students shifting the blame to American shoulders while the embers of the Trade Center are still warm. Many of us have children in secondary schools who, in this hour of mourning, have been lectured by their teachers on America’s sins and chickens coming home to roost. The political friends of Bill Ayers and Bernardine Dohrn have been busily at work for the last two decades seeding our educational culture with anti-American poisons that could one day destroy us.

A visit to a well-traveled website "for the progressive community" – www.commondreams.org – reveals how profoundly America has been rejected and how passionately its bloodthirsty enemies have been embraced by significant sections of our population, even as we enter a life and death struggle with an enemy that wants to exterminate us:

"Not only have we caused these events with our monstrous foreign policies but also with our complete disregard of our environment causing mortal damage to the Earth (Earth is a living being) and other species that co-exist with us." – Susan Yost, Cumberland VA"My heart went out to all the people there as I sat watching, waiting … and then sadness filled me, sadness that the foreign policy of this country has come back to haunt us; sadness that our government has been so arrogant that a lesson like this occurred;…It is US policies of terror in other countries that have brought this down on us." Matthew A Peckham, Eugene OR"Our corporate entities not only run this country but have decimated many other small countries in ways we cannot even fathom….This is a wake up call, America. It is time to change our ways." –Rich Cianflone, Colorado"We are reaping what we have sown. We will now have the dreaded opportunity to live in the same fear that our financial policies and military assistance have inflicted on others." – Harold Parkey, Fort Worth, Texas"For fifty-six years Washington has successfully conducted mass murders…." – William Mandel, Oakland, California (Mandel is a lifelong Communist and taxpayer funded Public Radio commentator.)"The United States conducts itself as a terrorist organization throughout the world." – Lance Del Goebel, Manhattan, Illinois"U.S. foreign policy has come home to roost today … we are reaping what we have sown."—Glynn AshAmerica, the Great Satan.Actually, these comments are merely cribbed from bin Laden’s friend, Saddam Hussein, whose response to the Trade Center attacks was as follows: "Notwithstanding the conflicting human feelings about what happened in America yesterday, America is reaping the thorns sown by its rulers in the world. Those thorns have not only bloodied the feet and the hearts of many, but also the eyes of people shedding tears on their dead whose souls have been reaped by America." Saddam then invoked a litany of misdeeds that could have come from a primer written by Noam Chomsky, Howard Zinn or any number of familiar anti-American extremists: "There is no place that does not have a symbolic monument that shows America’s criminal acts against these victims, whether in Japan that was the first to be seared by the nuclear destruction weapons boasted by America, or Vietnam, Iraq … or the criminal acts the US is now perpetrating by supporting the criminal racist Zionism against our heroic Palestinian people…."

This is the banal excuse of common criminals – the devil made me do it. "I don’t think you can understand a single thing we did," explains the pampered Weatherman bomber Bill Ayers "without understanding the violence of the Vietnam War."

I interviewed Ayers ten years ago, in a kindergarten classroom in uptown Manhattan where he was employed to shape the minds of inner city children. Dressed in bib overalls with golden curls rolling below his ears, Ayers reviewed his activities as a terrorist for my tape recorder. When he was done, he broke into a broad, Jack Horner grin and summed up his experience: "Guilty as hell. Free as a bird. America is a great country."

In my experience, what drives most radicals are passions of resentment, envy and inner rage. Bill Ayers is a scion of wealth. His father was head of Detroit’s giant utility Commonwealth Edison, in line for a cabinet position in the Nixon Administration before his son ruined it by going on a rampage that to this day he cannot explain to any reasonable person’s satisfaction (which is why he has to conceal so much). It could be said of Bill Ayers that he was consumed by angers so terrible they led him to destroy his father’s career. But in the 10 hours I interviewed him I saw none of it. What I saw was a shallowness beyond conception. All the Weather leaders I interviewed shared a similar vacuity. They were living inside a utopian fantasy, a separate reality, and had no idea of what they had done. Nor any way to measure it. Appreciating the nation to which they were born, recognizing the great gifts of freedom and opportunity their parents and communities had given them, distinguishing between right and wrong – it was all above their mental and moral ceiling.

RED ALERT: Did White House order FBI to "back off" anti-terror investigations of radicalized Muslim converts?

Today's update from Stratfor Research describes the background of a recent attack on U.S. soldiers in Little Rock, Arkansas. One soldier was killed and another critically wounded by a lone gunman who began shooting from a pickup truck.

Police quickly apprehended a suspect, Abdulhakim Mujahid Muhammad, a 21-year-old African-American man and convert to Islam. In his vehicle, police recovered an SKS rifle and two handguns. Muhammad reportedly admitted to the shootings and claimed he had specifically targeted U.S. military personnel; he stated had more soldiers been in the parking lot, he would have shot them too.

A disturbing aspect of the attack is that Muhammad had been brought to the FBI’s attention months ago, according to ABC News.

But U.S. counterterror teams may have been intentionally prevented from investigating radicalized converts to Islam:

Several weeks ago, STRATFOR heard from sources that the FBI and other law enforcement organizations had been ordered to “back off” of counterterrorism investigations into the activities of Black Muslim converts. At this point, it is unclear to us if that guidance was given by the White House or the Department of Justice, or if it was promulgated by the agencies themselves, anticipating the wishes of President Barack Obama and Attorney General Eric Holder.

Stratfor implies, however, that the investigations were canceled for purely political reasons.

...politics have proved obstructive to all facets of counterterrorism policy. And politics may have been at play in the Muhammad case as well as in other cases involving Black Muslim converts...

Is it possible that the White House or Eric Holder's Justice Department "turned off" counterterror investigations that could have saved the targeted soldiers?

This paragraph would appear to make clear that such an order was given:

Many FBI supervisors are reluctant to authorize investigations that they believe may have negative blow-back on their career advancement. In light of this institutional culture, and the order to be careful in investigations relating to Black Muslim converts, it would not be at all surprising to us if a supervisor refused to authorize a full-field investigation of Muhammad that would have included surveillance of his activities... Had the FBI opened a full-field investigation on Muhammad, and had it conducted surveillance on him, it would have been able to watch him participate in preoperational activities such as conducting surveillance of potential targets and obtaining weapons.

Congress must demand the release of this order and a complete explanation of its issuance.

Furthermore, the White House was silent on this incident, but immediately issued a press release in the case of the slain Kansan abortion doctor.

Congress must demand an immediate investigation of these reports. Our men and women serving in the military deserve better.

THE FOUNDATION"Were we directed from Washington when to sow, and when to reap, we should soon want bread." --Thomas Jefferson

GOVERNMENT & POLITICSHope 'n' Change: Government Motors

Chavez gives Obama the book on nationalization

"I want to disabuse people of this notion that somehow we enjoy, you know, meddling in the private sector." So said Barack Obama in March. But as the president announced General Motors' bankruptcy Monday, it became ever clearer that he is the new CEO of the world's largest automaker. The federal government now owns 60 percent of GM; the United Auto Workers own 17.5 percent. Even Venezuelan dictator Hugo Chavez recognized the significance: "Hey, Obama has just nationalized nothing more and nothing less than General Motors. Comrade Obama! Fidel, careful or we are going to end up to his right!"

In his speech, as columnist Terence Jeffrey points out, "President Obama used the first-person singular pronoun 'I' 34 times when he announced he was nationalizing General Motors. He used 'Congress' once and 'law' not at all."

How could Obama use the word "law"? There is nothing in the Troubled Asset Relief Program (TARP) legislation of last fall, much less the U.S. Constitution, that authorizes the bailout or nationalization of an automaker. Of course, when pressed, the administration points to TARP as its authority for giving GM $50 billion in various loans so far, not counting $15 billion for its financial arm, GMAC. In fact, TARP specifically limited funds to financial institutions. The Bush administration used it to make loans to GM and Chrysler anyway after Congress debated but abandoned the "Auto Industry Financing and Restructuring Act," which would have granted bailout money to automakers. Indiana is now challenging the constitutionality of using TARP for GM and Chrysler in federal court.

But never mind such petty details. Obama feels our pain: "I recognize that this may give some Americans pause," he said. Still, he assured us, "What we are not doing -- what I have no interest in doing, is running GM." And while he is running GM, it's only as a "reluctant shareholder because this is the only way to help GM succeed."

That depends on the definition of "succeed." In tandem with the new CAFE standards, the administration wants GM to produce more green cars. As The Wall Street Journal notes, "No one knows if Americans will buy such cars, even if GM can make them competitively in the U.S." Obama has already made clear, however, that it's not about whether Americans want such cars, it's about whether he does.

Bill of Rights, Inc. Could a Second Amendment case establish Fourteenth Amendment originalism?

By Will Haun

The Seventh Circuit Court of Appeals recently decided McDonald v. City of Chicago, a challenge to Chicago’s gun ban. The case has major implications for protecting gun rights at the state level, but its importance goes further than that. Depending on what the Supreme Court does, it could make originalism — relying on the text of the Constitution and its amendments as they were understood when enacted — the accepted standard for interpreting the Bill of Rights, rather than the whims of a handful of justices.

The plaintiff’s case in McDonald is based on the Second Amendment, but also on the Fourteenth. Last year, in Heller v. District of Columbia, the Supreme Court ruled that the Second Amendment protects an individual’s right to own firearms against infringement by the federal government. But can a state or local government infringe that right? This question hinges on the constitutional principle of “incorporation” — the notion that the Fourteenth Amendment makes the states subject to the Bill of Rights.

When it was enacted in 1791, the Bill of Rights applied to the federal government only. Individual states could (and did) restrict free speech, for example, or have an established church. The states were beholden only to their own laws and constitutions and to certain provisions in Article I of the U.S. Constitution. After the Civil War, as Justice Clarence Thomas wrote in Zelman v. Simmons-Harris (2002), “the Fourteenth Amendment fundamentally restructured the relationship between individuals and the States and ensured that States would not deprive citizens of liberty without due process of law.” But what “liberty” was included in this guarantee, and what was meant by “due process”?

The full text of the first section of the Fourteenth Amendment reads:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Ringing phrases, to be sure, but somewhat short on specifics. In fact, the meaning of every major clause in the first section is disputed, and has been since the amendment’s enactment in 1868.

Case law provides little clarity. The first major Supreme Court decision to grapple with these questions came in the Slaughterhouse cases of 1873, but — to quote Justice Thomas again, this time from his dissent in Saenz v. Roe (1999) — that decision “all but read the Privileges or Immunities Clause out of the Constitution.” By adopting a narrow interpretation of the clause, the Court gave states wide latitude to enact laws they thought were necessary.

Towards the end of the 19th century, however, as various reform movements took hold, restrictive state laws came to be seen as an obstacle to progress. So the justices eventually concluded, as Prof. James W. Ely of Vanderbilt Law School notes, “that the Fourteenth Amendment did confer a national standard of rights against the states.” But instead of reviving the “privileges or immunities” clause to enforce this standard (and thus reversing Slaughterhouse), they seized upon the “due process” clause.

That clause may simply seem to restate the Fifth Amendment requirement guaranteeing an individual’s right to a day in court and the protections of the legal process, this time applying it to the states as well as the federal government. That’s the way many modern originalists understand the clause. But as reform took hold, courts began interpreting it to mean that states had no power to deprive citizens of important rights, whether or not those rights were mentioned in the Constitution. The judges themselves would decide what rights fell under the clause’s protection. They called this doctrine “substantive due process” to distinguish it from the traditional day-in-court meaning, which came to be called “procedural due process.”

At first, substantive due process was used mostly to reverse state encroachments on economic choices, like freedom of contract. If a baker wanted to work 70 or 80 hours a week, no one could stop him. But as the doctrine evolved, justices used it to incorporate selective provisions of the Bill of Rights, making them enforceable against state governments (the Second Amendment, among other provisions, was excluded for various reasons). And as the 20th century wore on, these two trends diverged: Economic regulation became popular among the progressives on the Court, while regulation of individuals’ “private” conduct became even less so. The justices modified the doctrine to fit their new preferences.

The result, Ely notes, was to create “an artificial division between economic rights, which the pro–New Deal court wanted to reject, and personal rights, which they wanted to expand to mean virtually anything.” Since the 1940s, the concept of substantive due process has been greatly expanded by the Court, not just to protect the Bill of Rights from abridgment by state action, but to create rights to privacy and abortion, a “wall of separation” between church and state, and many other inventions of the Warren and Berger Courts.

Many originalists, such as David Forte, co-editor of The Heritage Guide to the Constitution, have rightly argued that “due process was never meant to have a substantive meaning,” but merely a judicial one. This argument provides the basis for many conservatives and originalists to stand against the whole principle of incorporation. In a strict interpretation of this view, Chicago is entitled to restrict gun rights, since the Second Amendment (and the rest of the Bill of Rights) does not apply to it.

To parry this objection, the briefs in McDonald that argue for incorporation rely on recent scholarship that justifies incorporation on originalist grounds. Prof. Michael Kent Curtis, of Wake Forest School of Law, who worked on an amicus brief in McDonald, used the broad text of the Fourteenth Amendment, statements made in the 39th Congress (which passed the amendment), and the legal theories of its sponsors to conclude in his 1990 book No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights that incorporation through the “privileges or immunities” clause was part of the amendment’s intent.

Other originalists, such as Jim Bond, professor emeritus at Seattle University School of Law, have questioned how widespread the agreement on incorporation was, especially in the southern-state ratifying conventions that meticulously reviewed the amendment before passing it. But there is still good reason to believe, as Forte says, that some “federal package of rights is protected by the privileges or immunities clause.”

Exactly what rights are included in that package is unclear, but the connection of incorporation with the “privileges or immunities” clause provides another weapon for civil-liberties lawyers. That explains why both the progressive Constitutional Accountability Center (a “living Constitution” advocate) and the libertarian Institute for Justice filed amicus briefs in McDonald v. Chicago in favor of incorporating the Second Amendment. In a case of politics making strange bedfellows, the amicus briefs put those two groups on the same side as the National Rifle Association, which is co-plaintiff with McDonald.

In a decision delivered earlier this week, the Seventh Circuit upheld Chicago’s ban on firearms, but the decision left the merits of incorporation through the “privileges or immunities” clause to the Supreme Court. Alan Gura, arguing on behalf of the NRA and McDonald, anticipated this; he noted in oral arguments that his side intends to “preserve this argument for the upper [Supreme] Court.” (Gura was also the lawyer for the plaintiff in Heller v. D.C.)

Assuming the Supreme Court agrees to review McDonald, its decision could send shock waves through constitutional law. If the “privileges or immunities” clause becomes the new justification for incorporating the Bill of Rights into state law, the days of “substantive due process,” and all the judicial overreaching it has brought, could be numbered. Still, the fact that some liberals support this interpretation is worrisome. Would it merely substitute a new all-purpose tool for legislating from the bench in place of the old one?

Not necessarily. Basing decisions on the text-based “privileges or immunities” clause, rather than the judge-created doctrine of “substantive due process,” would naturally lend itself to the increased use of originalist analysis of the Fourteenth Amendment. The focus of inquiry would be, in Forte’s words, “what could have been reasonably understood to be the ‘Privileges or Immunities’ of Federal Citizenship by the amendment’s framers” — limiting the ability of future justices to “find” new “rights” protected by it. So no matter how the incorporation debate shakes out, an endorsement of originalism would be a victory for conservatives who prize intellectual honesty in constitutional interpretation.

Seemingly aware of these implications, the Left is trying to preserve the contrivances of “substantive due process” in an originalist guise. They want to define “privileges” and “immunities” as broadly as possible, to include what Doug Kendall of the Constitutional Accountability Center calls “very important progressive values,” such as abortion rights and same-sex marriage. The goal is to continue expanding “individual rights” while permitting restriction of property rights and economic freedoms. So if the Supreme Court decides in McDonald’s favor, it could end the controversy over gun rights but begin a host of new battles in other areas.

Yet Robert Levy, chairman of the Cato Institute, is not afraid of opening a can of worms. He says that libertarians see McDonald as an opportunity “to resurrect economic liberties suspended by the Court under the post–New Deal version of substantive due process.” Conservatives should see this case as a rare opportunity to base any incorporation of the Bill of Rights on originalist grounds — an opportunity they should waste no time in seizing, for it may not come again.

— Will Haun is a recent graduate of American University and is policy chairman of the Young Conservative Coalition. He is interning at the Heritage Foundation’s Center for Legal and Judicial Studies this summer before beginning law school at Catholic University this fall.

The most consequential decision of the Supreme Court’s last term got only a little attention when it landed in May. And what attention it got was for the wrong reason.

But the lower courts have certainly understood the significance of the decision, Ashcroft v. Iqbal, which makes it much easier for judges to dismiss civil lawsuits right after they are filed. They have cited it more than 500 times in just the last two months.

“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.

On its face, the Iqbal decision concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man swept up on immigration charges could not sue two Bush administration officials for what he said was the terrible abuse he suffered in detention.

But something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States. Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation.

For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath.

This approach, particularly when coupled with the American requirement that each side pay its own lawyers no matter who wins, gave plaintiffs settlement leverage. Just by filing a lawsuit, a plaintiff could subject a defendant to great cost and inconvenience in the pre-trial fact-finding process called discovery.

Mark Herrmann, a corporate defense lawyer with Jones Day in Chicago, said the Iqbal decision will allow for the dismissal of cases that would otherwise have subjected defendants to millions of dollars in discovery costs. On the other hand, information about wrongdoing is often secret. Plaintiffs claiming they were the victims of employment discrimination, a defective product, an antitrust conspiracy or a policy of harsh treatment in detention may not know exactly who harmed them and how before filing suit. But plaintiffs can learn valuable information during discovery.

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

The old world was mechanical. A lawsuit that mouthed the required words was off and running. As the Supreme Court said in 1957 in Conley v. Gibson, a lawsuit should be allowed to go forward “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Things started to change two years ago, when the Supreme Court found a complaint in an antitrust suit implausible.

In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.

“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”

Courts applying Iqbal have been busy. A federal judge in Connecticut dismissed a disability discrimination suit this month, saying that Iqbal required her to treat the plaintiff’s assertions as implausible. A few days later, the federal appeals court in New York dismissed a breach of contract and securities fraud suit after concluding that its account of the defendants’ asserted wrongdoing was too speculative.

The judge hearing the claims of the falsely accused Duke lacrosse players has asked for briefing on whether their lawsuit against Durham, N.C., can pass muster under Iqbal. But the judge considering a case against John C. Yoo, the former Bush administration lawyer, said it could move forward despite Iqbal because the suit contained specific allegations about Mr. Yoo’s conduct in justifying the use of harsh interrogation methods.

In the Iqbal case itself, Javaid Iqbal, a Pakistani Muslim who was working as a cable television installer on Long Island, said he was subjected to intrusive searches and vicious beatings after being arrested on identity fraud charges two months after the Sept. 11 attacks.

Justice Kennedy said Mr. Iqbal’s suit against two officials had not cleared the plausibility bar. All Mr. Iqbal’s complaint plausibly suggested, Justice Kennedy wrote, “is that the nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available.”

Justice David H. Souter, said the majority had adopted a crabbed view of plausibility and had in the process upended the civil litigation system.

In his dissent in Iqbal, Justice Souter wrote that judges should accept the accusations in a complaint as true “no matter how skeptical the court may be.”

“The sole exception to this rule,” Justice Souter continued, “lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel.”

But that is no longer the law. Under the Iqbal decision, federal judges will now decide at the very start of a litigation whether the plaintiff’s accusations ring true, and they will close the courthouse door if they do not.

Subcommittee on Crime, Terrorism, and Homeland SecurityJudiciary CommitteeUnited States House of Representatives

Over-Criminalization of Conduct/Over-Federalization of Criminal Law

July 22, 2009

My name is Tim Lynch. I am the director of the Cato Institute's Project on Criminal Justice. Before I get into some of the nitty-gritty details of legal doctrine, let me begin by thanking you for the invitation to testify this afternoon. Although I believe the problems of Over-Criminalization of Conduct and Over-Federalization of Criminal Law are among the most serious problems facing the Congress today,1 my role this afternoon, as I understand it, is to highlight a related trend in the law—and that is the drift away from the idea of blameworthiness as a first principle of American criminal justice. That is, too often the government seeks to deny the proposition that it is unjust to inflict criminal punishment on people who are not blameworthy. My remarks will thus focus on that particular subject.

I. Introduction and Background

My approach to the criminal law begins with three basic propositions. First, the power that is wielded by police and prosecutors is truly immense. A dramatic raid, arrest, or indictment can bring enormous damage to a person's life—even before he or she has an opportunity to mount a defense in court. Second, the term "criminal" carries a stigma. It implies that the culprit has done something that is blameworthy. Third—and relatedly—it is important to keep a close eye on the manner in which the government creates and defines "criminal offenses." For as Harvard Law Professor Henry Hart once noted, "What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?"2 In my view, all persons of goodwill ought to be disturbed by the fact that the government is now bypassing the procedural protections of the Bill of Rights and attaching the "criminal" label to people who are not truly blameworthy.

Let me begin by trying to clarify some terminology. In our law schools today, the terms "intent" and "mens rea" are commonly used in a very broad manner—as concepts that include a spectrum of mental states (ranging from purposeful conduct to strict or vicarious liability) to be defined in statutes by policymakers. But for purposes of my testimony today, I will be using those terms in a more narrow sense. As Justice Potter Stewart once observed, "Whether postulated as a problem of 'mens rea,' of 'willfulness,' of 'criminal responsibility,' or of 'scienter,' the infliction of criminal punishment upon the unaware has long troubled the fair administration of justice."3 Today I want to advance the claim that it is wrong to criminally punish those who were "unaware" of the facts or rules that made their conduct unlawful. The remainder of my testimony will pinpoint the areas of our law where this problem is especially acute.

II. The Problem Areas

A. Ignorance of the Law is No Excuse

The sheer volume of modern law makes it impossible for an ordinary American household to stay informed. And yet, prosecutors vigorously defend the old legal maxim that "ignorance of the law is no excuse."4 That maxim may have been appropriate for a society that simply criminalized inherently evil conduct, such as murder, rape, and theft, but it is wholly inappropriate in a labyrinthine regulatory regime that criminalizes activities that are morally neutral. As Professor Henry M. Hart opined, "In no respect is contemporary law subject to greater reproach than for its obtuseness to this fact."5

To illustrate the rank injustice that can and does occur, take the case of Carlton Wilson, who was prosecuted because he possessed a firearm. Wilson's purchase of the firearm was perfectly legal, but, years later, he didn't know that he had to give it up after a judge issued a restraining order during his divorce proceedings. When Wilson protested that the judge never informed him of that obligation and that the restraining order itself said nothing about firearms, prosecutors shrugged, "ignorance of the law is no excuse."6 Although the courts upheld Wilson's conviction, Judge Richard Posner filed a dissent: "We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn't mean being able to go to the local law library and read Title 18. It would be preposterous to suppose that someone from Wilson's milieu is able to take advantage of such an opportunity."7 Judge Posner noted that Wilson would serve more than three years in a federal penitentiary for an omission that he "could not have suspected was a crime or even a civil wrong."8

It is simply outrageous for the government to impose a legal duty on every citizen to "know" all of the mind-boggling rules and regulations that have been promulgated over the years. Policymakers can and should discard the "ignorance-is-no-excuse" maxim by enacting a law that would require prosecutors to prove that regulatory violations are "willful" or, in the alternative, that would permit a good-faith belief in the legality of one's conduct to be pleaded and proved as a defense. The former rule is already in place for our complicated tax laws—but it should also shield unwary Americans from all of the laws and regulations as well.9

B. Vague Statutes

Even if there were but a few crimes on the books, the terms of such laws need to be drafted with precision. There is precious little difference between a secret law and a published regulation that cannot be understood. History is filled with examples of oppressive governments that persecuted unpopular groups and innocent individuals by keeping the law's requirements from the people. For example, the Roman emperor Caligula posted new laws high on the columns of buildings so that ordinary citizens could not study the laws. Such abominable policies were discarded during the Age of Enlightenment, and a new set of principles—known generally as the "rule of law"—took hold. Those principles included the requirements of legality and specificity.

"Legality" means a regularized process, ideally rooted in moral principle, by which crimes are designated and prosecuted by the government. The Enlightenment philosophy was expressed by the maxim nullum crimen sine lege (there is no crime without a law). In other words, people can be punished only for conduct previously prohibited by law. That principle is clearly enunciated in the ex post facto clause of the U.S. Constitution (article I, section 9). But the purpose of the ex post facto clause can be subverted if the legislature can enact a criminal law that condemns conduct in general terms, such as "dangerous and harmful" behavior. Such a law would not give people fair warning of the prohibited conduct. To guard against the risk of arbitrary enforcement, the Supreme Court has said that the law must be clear:

A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.10

The principles of legality and specificity operate together to reduce the likelihood of arbitrary and discriminatory application of the law by keeping policy matters away from police officers, administrative bureaucrats, prosecutors, judges, and members of juries, who would have to resolve ambiguities on an ad hoc and subjective basis.

Although the legality and specificity requirements are supposed to be among the first principles of American criminal law, a "regulatory" exception has crept into modern jurisprudence. The Supreme Court has unfortunately allowed "greater leeway" in regulatory matters because the practicalities of modern governance supposedly limit "the specificity with which legislators can spell out prohibitions."11 During the past 50 years, fuzzy legal standards, such as "unreasonable," "unusual," and "excessive," have withstood constitutional challenge.

The Framers of the American Constitution understood that democracy alone was no guarantor of justice. As James Madison noted, "It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow."12 Unfortunately, Madison's vision of unbridled lawmaking is an apt description of our modern regulatory state.13 For example, the Environmental Protection Agency received so many queries about the meaning of the Resource Conservation and Recovery Act that it set up a special hotline for questions. Note, however, that the "EPA itself does not guarantee that its answers are correct, and reliance on wrong information given over the RCRA hotline is no defense to an enforcement action."14 The situation is so bad that even many prosecutors are acknowledging that there is simply too much uncertainty in criminal law. Former Massachusetts Attorney General Scott Harshbarger concedes, "One thing we haven't done well in government is make it very clear, with bright lines, what kinds of activity will subject you to . . . criminal or civil prosecution."15

The first step toward addressing the problem of vague and ambiguous criminal laws would be for the Congress to direct the courts to follow the rule of lenity in all criminal cases.16 Legal uncertainties should be resolved in favor of private individuals and organizations, not the government.

C. Strict Liability

Two basic premises that undergird Anglo-American criminal law are the requirements of mens rea (guilty mind) and actus reus (guilty act).17 The first requirement says that for an act to constitute a crime there must be "bad intent." Dean Roscoe Pound of Harvard Law School writes, "Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong."18 According to that view, a man could not be prosecuted for leaving an airport with the luggage of another if he mistakenly believed that he owned the luggage. As the Utah Supreme Court noted in State v. Blue (1898), mens rea was considered an indispensable element of a criminal offense. "To prevent the punishment of the innocent, there has been ingrafted into our system of jurisprudence, as presumably in every other, the principle that the wrongful or criminal intent is the essence of crime, without which it cannot exist."19

By the same token, bad thoughts alone do not constitute a crime if there is no "bad act." If a police officer discovers a diary that someone mistakenly left behind in a coffee shop, and the contents include references to wanting to steal the possessions of another, the author cannot be prosecuted for a crime. Even if an off-duty police officer overhears two men in a tavern discussing their hatred of the police and their desire to kill a cop, no lawful arrest can be made if the men do not take action to further their cop-killing scheme. The basic idea, of course, is that the government should not be in the business of punishing "bad thoughts."

When mens rea and actus reus were fundamental prerequisites for criminal activity, no person could be branded a "criminal" until a prosecutor could persuade a jury that the accused possessed "an evil-meaning mind with an evil-doing hand."20 That understanding of crime—as a compound concept—was firmly entrenched in the English common law at the time of the American Revolution.

Over the years, however, the moral underpinnings of the Anglo-American view of criminal law fell into disfavor. The mens rea and actus reus requirements came to be viewed as burdensome restraints on well-meaning lawmakers who wanted to solve social problems through administrative regulations. As Professor Richard G. Singer has written, "Criminal law . . . has come to be seen as merely one more method used by society to achieve social control."21

The change began innocently enough. To protect young girls, statutory rape laws were enacted that flatly prohibited sex with girls under the age of legal consent. Those groundbreaking laws applied even if the girl lied about her age and consented to sex and if the man reasonably believed the girl to be over the age of consent. Once the courts accepted that exception to the mens rea principle, legislators began to identify other activities that had to be stamped out—even at the cost of convicting innocent-minded people.

The number of strict liability criminal offenses grew during the 20th century as legislators created scores of "public welfare offenses" relating to health and safety. Each time a person sought to prove an innocent state-of-mind, the Supreme Court responded that there is "wide latitude" in the legislative power to create offenses and "to exclude elements of knowledge and diligence from [their] definition."22 Those strict liability rulings have been sharply criticized by legal commentators. Professor Herbert Packer argues that the creation of strict liability crimes is both inefficacious and unjust.

It is inefficacious because conduct unaccompanied by an awareness of the factors making it criminal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future, nor does it single him out as a socially dangerous individual who needs to be incapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy. Consequently, on either a preventative or retributive theory of criminal punishment, the criminal sanction is inappropriate in the absence of mens rea.23

A dramatic illustration of the problem was presented in Thorpe v. Florida (1979).24 John Thorpe was confronted by a thief who brandished a gun. Thorpe got into a scuffle with the thief and wrested the gun away from him. When the police arrived on the scene, Thorpe was arrested and prosecuted under a law that made it illegal for any felon to possess a firearm. Thorpe tried to challenge the application of that law by pointing to the extenuating circumstances of his case. The appellate court acknowledged the "harsh result," but noted that the law did not require a vicious will or criminal intent. Thus, self-defense was not "available as a defense to the crime."25

True, Thorpe was a state case from 1979. The point here is simply to show the drift of our law. As Judge Benjamin Cardozo once quipped, once a principle or precedent gets established, it is usually taken to the "limit of its logic." For a more recent federal case, consider what happened to Dane Allen Yirkovsky. Yirkovsky was convicted of possessing one round of .22 caliber ammunition and for that he received minimum mandatory 15-year sentence.26 Here are the reported circumstances surrounding his "crime."

In late fall or early winter of 1998, Yirkovsky was living with Edith Turkington at her home in Cedar Rapids, Iowa. Instead of paying rent, Yirkovsky agreed to remodel a bathroom at the home and to lay new carpeting in the living room and hallway. While in the process of removing the old carpet, Yirkovsky found a Winchester .22 caliber, super x, round. Yirkovsky put the round in a small box and kept it in the room in which he was living in Turkington's house.

Subsequently, Yirkovsky's ex-girlfriend filed a complaint alleging that Yirkovsky had [some of] her property in his possession. A police detective spoke to Yirkovsky regarding the ex-girlfriend's property, and Yirkovsky granted him permission to search his room in Turkington's house. During this search, the detective located the .22 round. Yirkovsky admitted to police that he had placed the round where it was found by the detective.27

The appellate court found the penalty to be "extreme," but affirmed Yirkovsky's sentence as consistent with existing law.28

Strict liability laws should be abolished because their very purpose is to divorce a person's intentions from his actions. But if the criminal sanction imports blame—and it does—it is a perversion to apply that sanction to self-defense and other acts that are not blameworthy. Our criminal law should reflect the old Latin maxim, actus not facit reum nisi mens sit rea (an act does not make one guilty unless his mind is guilty).29

Everyone agrees with the proposition that if a person commands, pays, or induces another to commit a crime on that person's behalf, the person should be treated as having committed the act.30 Thus, if a husband hires a man to kill his wife, the husband is also guilty of murder. But it is another matter entirely to hold one person criminally responsible for the unauthorized acts of another. "Vicarious liability," the legal doctrine under which a person may be held responsible for the criminal acts of another, was once "repugnant to every instinct of the criminal jurist."31 Alas, the modern trend in American criminal law is to embrace vicarious criminal liability.

Vicarious liability initially crept into regulations that were deemed necessary to control business enterprises. One of the key cases was United States v. Park (1975).32 John Park was the president of Acme Markets Inc., a large national food chain. When the Food and Drug Administration found unsanitary conditions at a warehouse in April 1970, it sent Park a letter demanding corrective action. Park referred the matter to Acme's vice president for legal affairs. When Park was informed that the regional vice president was investigating the situation and would take corrective action, Park thought that was the end of the matter. But when unsanitary warehouse conditions were found on a subsequent inspection, prosecutors indicted both Acme and Park for violations of the Federal Food, Drug and Cosmetic Act.

An appellate court overturned Park's conviction because it found that the trial court's legal instructions could have "left the jury with the erroneous impression that [Park] could be found guilty in the absence of 'wrongful action' on his part" and that proof of that element was constitutionally mandated by due process.33 The Supreme Court, however, reversed the appellate ruling. Chief Justice Warren Burger opined that the legislature could impose criminal liability on "those who voluntarily assume positions of authority in business enterprises" because such people have a duty "to devise whatever measures [are] necessary to ensure compliance" with regulations.34 Thus, under the rationale of Park, an honest executive can be branded a criminal if a low-level employee in a different city disobeys a supervisor's instructions and violates a regulation—even if the violation causes no harm whatsoever.35

In 1994, Edward Hanousek was employed as a roadmaster for a railroad company. In that capacity, Hanousek supervised a rock quarrying project near an Alaska river. During rock removal operations, a backhoe operator accidentally ruptured a pipeline—and that mistake led to an oil spill into the nearby river. Hanousek was prosecuted under the Clean Water Act even though he was off duty and at home when the accident occurred. The case prompted Justice Clarence Thomas to express alarm at the direction of the law: "I think we should be hesitant to expose countless numbers of construction workers and contractors to heightened criminal liability for using ordinary devices to engage in normal industrial operations."36

Note that vicarious liability has not been confined to the commercial regulation context.37 Tina Bennis lost her car to the police because of the actions of her husband. The police found him in the vehicle with a prostitute.38 Pearlie Rucker was evicted from her apartment in a public housing complex because her daughter was involved with illicit drugs. To crack down on the drug trade, Congress enacted a law that was so strict that tenants could be evicted if one of their household members or guests used drugs. The eviction could proceed even if the drug activity took place outside the residence. Also under that federal law, it did not matter if the tenant was totally unaware of the drug activity.39

Further, in some jurisdictions, the drivers of vehicles are exposed to criminal liability if any passenger brings contraband—such as a marijuana joint—into an automobile even if there is no proof that the driver was aware of the contraband's existence.40

III. Conclusion

The federal criminal code has become so voluminous that it not only bewilders the average citizen, but also the most able attorney. Our courthouses have become so clogged that there is no longer adequate time for trials. And our penitentiaries are now operating well beyond their design capacity—many are simply overflowing with inmates. These developments evince a criminal law that is adrift. To get our federal system back "on track," Congress should take the following actions:

Discard the old maxim that "ignorance of the law is no excuse." Given the enormous body of law presently on the books, this doctrine no longer makes any sense.Minimize the injustice of vaguely written rules by restoring traditional legal defenses such as diligence, good-faith, and actual knowledge.Restore the rule of lenity for criminal cases by enacting a statute that will explicitly provide for the "strict construction" of federal criminal laws.Abolish the doctrine of strict criminal liability as well as the doctrine of vicarious liability. Those theories of criminal liability are inconsistent with the Anglo-American tradition and have no place in a free society.As noted earlier, these reform measures should be only the beginning of a fundamental reexamination of the role of the federal government, as well as the role of the criminal sanction, in American law.

1 For a detailed discussion of these issues, see Task Force on Federalization of Criminal Law, The Federalization of Criminal Law (Chicago: American Bar Association, 1998); John Baker, "Measuring the Explosive Growth of Federal Crime Legislation," (The Federalist Society for Law and Public Policy Studies (May 2004)); John Baker, "Nationalizing Criminal Law: Does Organized Crime Make It Necessary or Proper?" Rutgers Law Journal 16 (1985): 495; Brian Walsh, "Doing Violence to the Law: The Over-Federalization of Crime," Federal Sentencing Reporter 20 (June 2008): 295; Erik Luna, "The Overcriminalization Phenomenon," American University Law Review 54 (2005): 703.

2 Henry M. Hart, Jr., "The Aims of the Criminal Law," reprinted in In the Name of Justice (Washington, D.C.: Cato Institute, 2009), p. 6.

28 In my view, Congress should not stand by secure in the knowledge that such precedents exist. Justice Anthony Kennedy has made this point quite well: "The legislative branch has the obligation to determine whether a policy is wise. It is a grave mistake to retain a policy just because a court finds it constitutional…. Few misconceptions about government are more mischievous than the idea that a policy is sound simply because a court finds it permissible. A court decision does not excuse the political branches or the public from the responsibility for unjust laws." Anthony M. Kennedy, "An Address to the American Bar Association Annual Meeting," reprinted in In the Name of Justice (Washington, D.C.: Cato Institute, 2009), p. 193.

32 United States v. Park, 421 U.S. 658 (1975). Although many state courts have followed the reasoning of the Park decision with respect to their own state constitutions, some courts have recoiled from the far-reaching implications of vicarious criminal liability. For example, the Pennsylvania Supreme Court has held that "a man's liberty cannot rest on so frail a reed as whether his employee will commit a mistake in judgment." Commonwealth v. Koczwara, 155 A.2d 825, 830 (1959). That Pennsylvania ruling, it must be emphasized, is an aberration. It is a remnant of the common law tradition that virtually every other jurisdiction views as passe´.

33 United States v. Park, 421 U.S. 658, 666 (1975).

34 Ibid., p. 672.

35 "[T]he willfulness or negligence of the actor [will] be imputed to him by virtue of his position of responsibility." United States v. Brittain, 931 F.2d 1413, 1419 (1991); United States v. Johnson & Towers, Inc., 741 F.2d 662, 665 n. 3 (1984). See generally Joseph G. Block and Nancy A. Voisin, "The Responsible Corporate Officer Doctrine—Can You Go to Jail for What You Don't Know?" Environmental Law (Fall 1992).

2nd post. Could easily go under "Cognitive Dissonance" or "Health Care," but I put it here as BHO's failure to include tort reform as an element of his health care plan is it's least mentioned glaring failure.

Why John Edwards Is Responsible For More Unnecessary Operations Than “Greedy Doctors”Posted by Duane Lester on Jul 23rd, 2009 • 761 views Clicks

Last night during his national press conference, President Barack Obama maligned doctors as doing unnecessary operations based on greed, not the best interest of the patient. He said:

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“Right now, doctors a lot of times are forced to make decisions based on the fee payment schedule that’s out there. … The doctor may look at the reimbursement system and say to himself, ‘You know what? I make a lot more money if I take this kid’s tonsils out,’” Obama told a prime-time news conference.

The president added: “Now, that may be the right thing to do, but I’d rather have that doctor making those decisions just based on whether you really need your kid’s tonsils out or whether it might make more sense just to change — maybe they have allergies. Maybe they have something else that would make a difference.”

It’s interesting that President Obama discusses unnecessary operations as one of the causes of high health care costs. Do you know what the most often performed operation is in the United States? With heart disease being the number one killer in America, you might think it would be related to that, perhaps bypass surgery or angioplasty.

It’s cesarean section. In 1965, only 4.5 percent of children were delivered via c-section. Today, 31 percent are. That’s a huge increase for a procedure that was once reserved to emergency situations. And as the Los Angeles Times notes, it has resulted in “an explosion in medical bills, an increase in complications — and a reconsideration of the cesarean as a sometimes unnecessary risk.”

What is the reason for the increase? Is it greedy doctors looking for a new summer home? No, it’s something far worse.

John Edwards.

The now disgraced former Senator from North Carolina made his name, and his money, as a trial lawyer. In a 1985 case, he convinced a jury that a doctor’s negligence was responsible for a child’s cerebral palsy. He argued that had the doctor performed a c-section earlier, the girl would not have been disabled. He went so far as to channel the girl in court for the jury:

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“I have to tell you right now — I didn’t plan to talk about this — right now I feel her, I feel her presence,” he said in his record-setting 1985 lawsuit on behalf of Jennifer Campbell, born brain-damaged after being deprived of oxygen during labor. “She’s inside me and she’s talking to you. . . . And this is what she says to you. She says, `I don’t ask for your pity. What I ask for is your strength. And I don’t ask for your sympathy, but I do ask for your courage.’ “

The jury awarded the plaintiff $6.5 million. The New York Times reports this verdict led to more lawsuits:

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In the decade that followed, Mr. Edwards filed at least 20 similar lawsuits against doctors and hospitals in deliveries gone wrong, winning verdicts and settlements of more than $60 million, typically keeping about a third. As a politician he has spoken of these lawsuits with pride.

“I was more than just their lawyer,” Mr. Edwards said of his clients in a recent essay in Newsweek. “I cared about them. Their cause was my cause.”

The effect of his work has reached beyond those cases, and beyond his own income. Other lawyers have filed countless similar cases; just this week, a jury on Long Island returned a $112 million award. And doctors have responded by changing the way they deliver babies, often seeing a relatively minor anomaly on a fetal heart monitor as justification for an immediate Caesarean.

So what has been the result of the increase in Caesarean section births? Occurrences of cerebral palsy have “remained fairly stable” at about “1.5/1000 births.”

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In fact, the incidence of CP seems to be increasing slightly with the increased survival rates of infants born before thirty-two weeks gestation.

Whether or not fetal heart rate monitoring during labor has led to a reduction in cerebral palsy has been researched extensively. The conclusion established by multiple scientific evidence is: Fetal heart rate monitoring during labor does not reduce rates of cerebral palsy, although it does increase the rate of cesarean section.

As the L.A. Times notes, they also lead to unnecessary costs:

As the No. 1 cause of hospital admissions, childbirth is a huge part of the nation’s $2.4-trillion annual healthcare expenditure, accounting in hospital charges alone for more than $79 billion.

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Because the average uncomplicated cesarean runs about $4,500, nearly twice as much as a comparable vaginal birth, cesareans account for a disproportionate amount (45%) of delivery costs. Among privately insured patients, uncomplicated cesareans run about $13,000.

and:

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The problem, experts say, is that the cesarean — delivery via uterine incision — exposes a woman to the risk of infection, blood clots and other serious problems. Cesareans also have been shown to increase premature births and the need for intensive care for newborns. Even without such complications, cesareans result in longer hospital stays.

If the president is really interested in reducing the occurrences of unnecessary operations, he doesn’t need to create the boogey-man of “greedy doctors.” Greedy doctors don’t remove body parts like tonsils. They implant body parts, like silicone breats. The real culprit here is the trial lawyer, who has helped create a medical world choosing procedures based on the CYA diagnosis method. However, the president’s speech last night was not critical of this, and didn’t emphasize tort reform.

A 2001 article from National Review explains why the president doesn’t see a need for tort reform:

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An estimated 50 cents of every dollar awarded to tort plaintiffs gets eaten up by lawyers and courts-and a great deal of that money ends up benefiting Democratic candidates. Over the last decade, the legal profession has led all other groups in campaign contributions-giving a total of $357 million to federal candidates-and 70 percent of its cash goes to Democrats. The 56,000-member Association of Trial Lawyers of America (ATLA) was the top PAC contributor to Democratic federal candidates in the last election cycle; the organization spent $2.6 million, 86 percent of which went to Democrats.

If he were serious about lower costs, this would be the cornerstone of his movement. Instead, he maligns “greedy doctors,” many of whom work 16 hours or more a day trying to help people, and lets the “greedy trial lawyers” off the hook. Remember that next time he accuses the Republicans of bowing down to special interests.

When we think about the pace of change in technology, it's usually to marvel at how computing power has become cheaper and faster or how many new digital ways we have to communicate. Unfortunately, this pace of change is increasingly clashing with some of the slower-moving parts of our culture.

Technology moves so quickly we can barely keep up, and our legal system moves so slowly it can't keep up with itself. By design, the law is built up over time by court decisions, statutes and regulations. Sometimes even criminal laws are left vague, to be defined case by case. Technology exacerbates the problem of laws so open and vague that they are hard to abide by, to the point that we have all become potential criminals.

Boston civil-liberties lawyer Harvey Silverglate calls his new book "Three Felonies a Day," referring to the number of crimes he estimates the average American now unwittingly commits because of vague laws. New technology adds its own complexity, making innocent activity potentially criminal.

Mr. Silverglate describes several cases in which prosecutors didn't understand or didn't want to understand technology. This problem is compounded by a trend that has accelerated since the 1980s for prosecutors to abandon the principle that there can't be a crime without criminal intent.

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Associated Press

Boston civil-liberties lawyer Harvey Silverglate.In 2001, a man named Bradford Councilman was charged in Massachusetts with violating the wiretap laws. He worked at a company that offered an online book-listing service and also acted as an Internet service provider to book dealers. As an ISP, the company routinely intercepted and copied emails as part of the process of shuttling them through the Web to recipients.

The federal wiretap laws, Mr. Silverglate writes, were "written before the dawn of the Internet, often amended, not always clear, and frequently lagging behind the whipcrack speed of technological change." Prosecutors chose to interpret the ISP role of momentarily copying messages as they made their way through the system as akin to impermissibly listening in on communications. The case went through several rounds of litigation, with no judge making the obvious point that this is how ISPs operate. After six years, a jury found Mr. Councilman not guilty.

Other misunderstandings of the Web criminalize the exercise of First Amendment rights. A Saudi student in Idaho was charged in 2003 with offering "material support" to terrorists. He had operated Web sites for a Muslim charity that focused on normal religious training, but was prosecuted on the theory that if a user followed enough links off his site, he would find violent, anti-American comments on other sites. The Internet is a series of links, so if there's liability for anything in an online chain, it would be hard to avoid prosecution.

Mr. Silverglate, a liberal who wrote a previous book taking the conservative position against political correctness on campuses, is a persistent, principled critic of overbroad statutes. This is a common problem in securities laws, which Congress leaves intentionally vague, encouraging regulators and prosecutors to try people even when the law is unclear. He reminds us of the long prosecution of Silicon Valley investment banker Frank Quattrone, which after five years resulted in a reversal of his criminal conviction on vague charges of obstruction of justice.

These miscarriages are avoidable. Under the English common law we inherited, a crime requires intent. This protection is disappearing in the U.S. As Mr. Silverglate writes, "Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations," even as "Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood." Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it. Expect more such prosecutions as Washington adds regulations.

Sometimes legislators know when they make false distinctions based on technology. An "anti-cyberbullying" proposal is making its way through Congress, prompted by the tragic case of a 13-year-old girl driven to suicide by the mother of a neighbor posing as a teenage boy and posting abusive messages on MySpace. The law would prohibit using the Internet to "coerce, intimidate, harass, or cause substantial emotional distress to a person." Imagine a law that tried to apply this control of speech to letters, editorials or lobbying.

Mr. Silverglate, who will testify against the bill later this week, tells me he figures that "being emotionally distressed is just part of living in a free society." New technologies like the Web, he concludes, "scare legislators because they don't understand them and want to control them, even as they become a normal part of life."

In a complex world of new technologies, there is more need than ever for clear rules of the road. Americans should expect that a crime requires bad intent and also that Congress and prosecutors will try to create clarity, not uncertainty. Our legal system has a lot of catching up to do to work smoothly with the rest of our lives.

"At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous." --Thomas Jefferson

Political Futures

The Kagan Show Hearings"[In her confirmation hearings last week, Elena] Kagan did her best to say nothing, and her best was sufficient unto the day. She reduced the vapid to the insipid, as in an exchange with Sen. Tom Coburn over the limits of the Constitution's Commerce Clause -- written by the Founders to limit the power of the federal government and distorted by liberals, both on the Supreme Court and off, to enable the feds to expand the nanny state without limit. When Mr. Coburn asked whether Congress could enact a law requiring Americans to eat three fruits and three vegetables a day, Mzz Kagan replied: 'That sounds like a dumb law.' Mr. Coburn was trying to get at her view of the Commerce Clause, and got a wisecrack. Mzz Kagan then added that the courts would be wrong to strike down a dumb law just because it was dumb. What's not at all dumb about the question is that President Obama is relying on the Commerce Clause to defend his own dumb idea, the health care 'reform.' But not to laugh. The left is always eager to defend its dumb ideas. ... Since Mzz Kagan has never been a judge, we don't have a judicial record to measure her by, and we must rely on her vague answers to vapid questions and can only surmise, suppose and speculate. She sounds like a reliable liberal, ready to stand up for the law of the nanny, enforced by the rod of the state. We won't know for sure until it's time to bend over." --Washington Times editor emeritus Wesley Pruden

For the Record"As the great Supreme Court Justice Oliver Wendell Holmes said, his job was 'to see that the game is played according to the rules whether I like them or not.' If the public doesn't like the rules, or the consequences to which the rules lead, then the public can change the rules via the ballot box. But that is very different from judges changing the rules by verbal sleight of hand, or by talking about 'weighing of the constitutional right to bear arms' against other considerations, as Justice Breyer puts it. That's not his job. Not if 'we the people' are to govern ourselves, as the Constitution says. As for the merits or demerits of gun control laws themselves, a vast amount of evidence, both from the United States and from other countries, shows that keeping guns out of the hands of law-abiding citizens does not keep guns out of the hands of criminals. It is not uncommon for a tightening of gun control laws to be followed by an increase -- not a decrease -- in gun crimes, including murder. Conversely, there have been places and times where an increase in gun ownership has been followed by a reduction in crimes in general and murder in particular. Unfortunately, the media intelligentsia tend to favor gun control laws, so a lot of hard facts about the futility, or the counterproductive consequences of such laws, never reach the public through the media. ... The media, like Justice Breyer, might do well to reflect on what is their job and what is the voting public's job." --economist Thomas Sowell

Culture"[In] the Supreme Court's 5-4 decision ... in the case of Christian Legal Society v. Martinez (UC Hastings) ... [the] court ruled that a public university is not required to subsidize campus groups it considers discriminatory. The Christian Legal Society excludes homosexuals and non-Christians. But isn't the court allowing the university to discriminate against the beliefs of the Christian group, especially if the group is now required to admit people who violate teachings central to its faith and mission statement? In writing for the majority, Justice Ruth Bader Ginsburg said the school's policy, which requires student organizations to be open to everyone to qualify for official status, 'ensures that no Hastings student is forced to fund a group that would reject her as a member.' I wonder if this would apply to a member of CLS if they applied for membership in the gay-lesbian-bisexual-transgender club, or anything else that may come down the pike. Will campus Jewish groups be required to admit Christians? Maybe the football team can bring a discrimination suit against the school for not allowing them to shower with the women's lacrosse team. The court's ruling in the CLS case is no less far-fetched. Student activity fees have long subsidized campus organizations whose beliefs and practices no doubt offend and are counter to the beliefs and practices of other students. The way the legal game is played, the beliefs of Christian groups can be regularly offended, but gay and other groups favored by the secular left enjoy special status from academic elites. This is what passes for pluralism, tolerance and academic freedom on college campuses." --columnist Cal Thomas

Outside of traffic, or some misd. offenses, i'm opposed to strict liability criminal laws. Intent should be an element of a felony crime.

I didn't know where to put this, perhaps in the comedy section, but it is a true story. Not criminal, but I don't know his "intent".

Good and bad I suppose, but people in America can sue for almost any reason. In some systems, losers pays. An interesting thought...But I do like some of the comments...

Saun Ellis is in hot water over a wintry problem. A lawsuit has been filed against Ellis by a Seattle Seahawks season ticket holder for an incident on Dec. 21, 2008, when Ellis picked up a large chunk of snow and tossed it at the fan before exiting the field at the end of the game. Robert Larsen filed the suit to the Kings County Courthouse in Seattle on Dec. 16 and is seeking damages stemming from past and future medical expenses, past and future loss of earning, partial impairment of earnings and earning capacity, mental and physical pain and suffering and a slew of other offenses related to the incident, according to the case documents.

"The fan actually caught the snow in the video, and did a dance with it for two minutes...I'm sure it was tramatic."

"I'm sure his wife hits him harder."or

"That fan should be incarcerated for being such a wuss. He'll have more than a snowball to worry about."